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3232God and Guns Are None of Uncle Sam’s Businesshttp://tenthamendmentcenter.com/2019/09/14/god-and-guns-are-none-of-uncle-sams-business/
Sat, 14 Sep 2019 07:47:28 +0000http://tenthamendmentcenter.com/?p=28716The pro-gunners want Congress to do this. The anti-gunners what Congress to do that. Same for religious issues. Well, there are 102 major legislative bodies in the United States. Most of them have the authority to write laws about guns and religion. Can you name the two that don’t have that authority? The First Amendment […]]]>

The pro-gunners want Congress to do this. The anti-gunners what Congress to do that. Same for religious issues. Well, there are 102 major legislative bodies in the United States. Most of them have the authority to write laws about guns and religion. Can you name the two that don’t have that authority?

The First Amendment says “Congress shall make no law respecting an establishment of religion, …” The Second Amendment says, “… the right of the people to keep and bear arms, shall not be infringed.” The Tenth Amendment clarifies that the states have these authorities. We forget that the Bill of Rights restricts the federal government but not our entire governmental system.

The Constitution left these two topics to the sovereign states. The First and Second Amendments to the U.S. Constitution (and hence also the first two of the Bill of Rights) say that the federal Congress has no legislative jurisdiction to write such laws.

We forget that this is not a democracy but a democratic republic. It is a kind of “united nations” with each nation retaining a great deal of sovereignty. However, we the people, have been prone to look to the federal government for legislation to fix any difficulty. These first two amendments were designed, along with the Tenth Amendment to assure that these issues, always delicate, would be handled by governments closer to the people than the federal government could ever be.

The States are Sovereign Nations

The United States is exactly that – united states or united nations. It is a cooperative designed to address issues which would otherwise breed conflict between those nation-states and to present a unified face to the world. That was the intent when the thirteen, independent nations came together to replace the Confederacy. There was so much concern that the new over-all government might get too powerful, that the Bill of Rights was needed in order to get the new constitution approved by those nation-states. The last statement in the Bill of Rights clarifies that all authority not granted by the new constitution was reserved to the states and the citizens.

It’s Our Own Fault

“Congress shall make no law …” seems clear enough. And so does “shall not be infringed”. So what’s the problem? We humans have a tendency to grab the biggest stick we can lay our hands on when we want something taken care of. That’s the feds, of course. In the process, we have put the legislative authority in the hands of people who live thousands of miles away. We also forget that laws don’t administer themselves, they are enforced by individual people, not by agencies or organizations. Like the patrolman in your rear-view mirror, when enforcement time arrives, it is one-on-one.

We are wise if we keep power as small and weak and as close to us as possible. Instead, we have reached for the big stick that we are all tired of dodging.

And if that weren’t enough, we have elected representatives who promise to “do something” about this or that without thinking about which governmental body would best handle the problem. It is high time to demand these people tell us what they will not do, and how they will help put our government back in the cage where it was first confined. We need to change the dialog and we can if we ask the right questions and demand the right behavior.

Want to Feel Like Your Opinion Matters?

Then you want to keep political power as close to home as possible. You want a renewal of the republic mindset. You want to vote for representatives who promise and know how to do that. This is not a foreign idea at all. The founders knew that land, water, freedom of conscience and self-defense were all necessary to the pursuit of happiness and they did their best to keep the federal government out of those matters. Property and water laws are all administered by the states. Think about who you deal with in matters of real estate, vehicles, roads, guns and water rights. Except for some federal laws, these are all administered by the states. That was on purpose. And those federal laws are probably unconstitutional when looked at closely.

]]>Is the U.S. Government the Enemy of the People?http://tenthamendmentcenter.com/2019/09/11/is-the-u-s-government-the-enemy-of-the-people/
Wed, 11 Sep 2019 08:14:08 +0000http://tenthamendmentcenter.com/?p=28712Take heed, America. Our losses are mounting with every passing day. What began with the post-9/11 passage of the USA Patriot Act has snowballed into the eradication of every vital safeguard against government overreach, corruption and abuse. The citizenry’s unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security has […]]]>

Take heed, America. Our losses are mounting with every passing day.

What began with the post-9/11 passage of the USA Patriot Act has snowballed into the eradication of every vital safeguard against government overreach, corruption and abuse.

The citizenry’s unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security has resulted in a society where the nation is being locked down into a militarized, mechanized, hypersensitive, legalistic, self-righteous, goose-stepping antithesis of every principle upon which this nation was founded.

Set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, overcriminalization, armed surveillance drones, whole body scanners, stop and frisk searches, police violence and the like—all of which have been sanctioned by Congress, the White House and the courts—our constitutional freedoms have been steadily chipped away at, undermined, eroded, whittled down, and generally discarded.

The rights embodied in the Constitution, if not already eviscerated, are on life support.

Free speech, the right to protest, the right to challenge government wrongdoing, due process, a presumption of innocence, the right to self-defense, accountability and transparency in government, privacy, press, sovereignty, assembly, bodily integrity, representative government: all of these and more have become casualties in the government’s war on the American people, a war that has grown more pronounced since 9/11.

Indeed, since the towers fell on 9/11, the U.S. government has posed a greater threat to our freedoms than any terrorist, extremist or foreign entity ever could.

While nearly 3,000 people died in the 9/11 attacks, the U.S. government and its agents have easily killed at least ten times that number of civilians in the U.S. and abroad since 9/11 through its police shootings, SWAT team raids, drone strikes and profit-driven efforts to police the globe, sell weapons to foreign nations (which too often fall into the hands of terrorists), and foment civil unrest in order to keep the military industrial complex gainfully employed.

The American people have been treated like enemy combatants, to be spied on, tracked, scanned, frisked, searched, subjected to all manner of intrusions, intimidated, invaded, raided, manhandled, censored, silenced, shot at, locked up, denied due process, and killed.

In allowing ourselves to be distracted by terror drills, foreign wars, color-coded warnings, underwear bombers and other carefully constructed exercises in propaganda, sleight of hand, and obfuscation, we failed to recognize that the U.S. government—the government that was supposed to be a “government of the people, by the people, for the people”—has become the enemy of the people.

This is a government that has grown so corrupt, greedy, power-hungry and tyrannical over the course of the past 240-plus years that our constitutional republic has since given way to idiocracy, and representative government has given way to a kleptocracy (a government ruled by thieves) and a kakistocracy (a government run by unprincipled career politicians, corporations and thieves that panders to the worst vices in our nature and has little regard for the rights of American citizens).

This is a government that, in conjunction with its corporate partners, views the citizenry as consumers and bits of data to be bought, sold and traded

This is a government that is laying the groundwork to weaponize the public’s biomedical data as a convenient means by which to penalize certain “unacceptable” social behaviors. Incredibly, as part of a proposal being considered by the Trump Administration, a new government agency HARPA (a healthcare counterpart to the Pentagon’s research and development arm DARPA) will take the lead in identifying and targeting “signs” of mental illness or violent inclinations among the populace by using artificial intelligence to collect data from Apple Watches, Fitbits, Amazon Echo and Google Home.

This is a government that routinely engages in taxation without representation, whose elected officials lobby for our votes only to ignore us once elected.

This is a government that uses fusion centers, which represent the combined surveillance efforts of federal, state and local law enforcement, to track the citizenry’s movements, record their conversations, and catalogue their transactions.

This is a government whose wall-to-wall surveillance has given rise to a suspect society in which the burden of proof has been reversed such that Americans are now assumed guilty until or unless they can prove their innocence.

This is a government that treats its people like second-class citizens who have no rights, and is working overtime to stigmatize and dehumanize any and all who do not fit with the government’s plans for this country.

This is a government that has militarized American’s domestic police, equipping them with military weapons such as “tens of thousands of machine guns; nearly 200,000 ammunition magazines; thousands of pieces of camouflage and night-vision equipment; and hundreds of silencers, armored cars and aircraft,” in addition to armored vehicles, sound cannons and the like.

This is a government that has provided cover to police when they shoot and kill unarmed individuals just for standing a certain way, or moving a certain way, or holding something—anything—that police could misinterpret to be a gun, or igniting some trigger-centric fear in a police officer’s mind that has nothing to do with an actual threat to their safety.

This is a government that treats public school students as if they were prison inmates, enforcing zero tolerance policies that criminalize childish behavior, and indoctrinating them with teaching that emphasizes rote memorization and test-taking over learning, synthesizing and critical thinking.

This is a government that has empowered police departments to make a profit at the expense of those they have sworn to protect through the use of asset forfeiture laws, speed traps, and red light cameras.

This is a government that has allowed the presidency to become a dictatorship operating above and beyond the law, regardless of which party is in power.

This is a government that treats dissidents, whistleblowers and freedom fighters as enemies of the state.

This is a government that has in recent decades unleashed untold horrors upon the world—including its own citizenry—in the name of global conquest, the acquisition of greater wealth, scientific experimentation, and technological advances, all packaged in the guise of the greater good.

This is a government that allows its agents to break laws with immunity while average Americans get the book thrown at them.

This is a government that justifies all manner of government tyranny and power grabs in the so-called name of national security, national crises and national emergencies.

This is a government that exports violence worldwide, with one of this country’s most profitable exports being weapons. Indeed, the United States, the world’s largest exporter of arms, has been selling violence to the world in order to prop up the military industrial complex and maintain its endless wars abroad.

This is a government that is consumed with squeezing every last penny out of the population and seemingly unconcerned if essential freedoms are trampled in the process.

This is a government that routinely undermines the Constitution and rides roughshod over the rights of the citizenry, eviscerating individual freedoms so that its own powers can be expanded.

This is a government that believes it has the authority to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation, the Constitution be damned.

In other words, this is not a government that believes in, let alone upholds, freedom.

]]>Trial By Jury: A Jewel of Freedomhttp://tenthamendmentcenter.com/2019/09/09/trial-by-jury-a-jewel-of-freedom/
Mon, 09 Sep 2019 10:56:07 +0000http://tenthamendmentcenter.com/?p=28693The Anglo-American protection of a person’s right to have the legitimacy of accusations made against him determined by a jury of his peers is of ancient origin, so ancient in fact, that the date of its first appearance in English law may be hidden in the fog of distant history. That said, there is a […]]]>

The Anglo-American protection of a person’s right to have the legitimacy of accusations made against him determined by a jury of his peers is of ancient origin, so ancient in fact, that the date of its first appearance in English law may be hidden in the fog of distant history.

That said, there is a verifiable and influential date of the express reservation of that most inestimable rights

On June 15, 1215, a cohort of twenty-five rebellious barons gathered on the plains of Runnymede on the banks of the River Thames and exacted from King John his signature on a “Great Charter,” a list of rights known to history by its Latin name: Magna Carta.

Paragraph 63 of that the document declares that “men in our kingdom shall have and keep all these previously determined liberties, rights, and concessions, well and in peace, freely and quietly, in their fullness and integrity, for themselves and their heirs, from us and our heirs, in all things and all places for ever, as is previously described here.”

One of the timeless tenets of English liberty endowed with eternal protection by this famous parchment was the trial by jury. The 39th Clause mandates:

“No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.”

Measuring the origin of the right to a trial by jury from its codification in the Magna Carta would make that perpetual protection nearly 900 years old. That might not be accurate, however. Believe it or not, there is evidence that the right to a trial by jury as understood in England (and later in America) is of much older origin.

In his History of Trial by Jury, written in 1852, Scottish lawyer and member of Parliament, William Forsyth described the difficulty of determining the genealogy of the trial by jury, as well as a couple of the most prevalent theories on the subject:

“Few subjects have exercised the ingenuity and baffled the research of the historian more than the origin of the jury. No long time has elapsed since the popular opinion was — and perhaps it even now prevails — that it was an institution established by Alfred the Great; and we prided ourselves on the idea that this was one of the legacies of freedom bequeathed to us by our Anglo-Saxon ancestors.”

Forsyth quotes another legal historian who posits, regarding the antiquity of trial by jury, that “in England, it is of a tradition so high that nothing is known of its origin; and of a perfection so absolute that it has remained in unabated rigor from its commencement to the present time.”

Another author, Charles Du Cange, postulated that this principle was practiced by the Normans, who inherited the institution from the Goths.

A survey of the suggested origins of this right reveals that the highly esteemed lawyer and legal theorist Sergeant Stephen, weighs the various theories before declaring his own educated estimate:

“The most probable theory seems to be that we owe the germ of this (as of so many of our institutions) to the Normans, and that it was derived by them from Scandinavian tribunals, where the judicial number of twelve was always held in great veneration,” he writes (a recent academic article on the symbolism of numbers in Old Norse literature reports that among the ancient Norse the number twelve “is lawfully and legendarily the sign of maturity”).

Finally, the most accepted modern attribution of the adoption of the trial by jury in English law was first published in 1898 in The History of English Law before the Time of Edward I co-authored by Frederic William Maitland and Frederick Pollock.

Maitland and Pollock authoritatively assert that “it is not to be denied that the few legal ideas and institutions which we can confidently describe as imported from Normandy, were of decisive importance. This is preeminently true of the transplanted Frankish inquest. It has in it the germ of all that becomes most distinctively English in the English law of the later middle ages, the germ of trial by jury….”

Searching for the precise moment that the first delicate shoot of the great tree of trial by jury broke through the soil of English jurisprudence is captivating and likely to lead the curious down a rabbit hole of research from which it could become impossible to escape!

Of greater value, however, to 21st Century Americans is analyzing why trial by jury is considered a critical facet of the jewel of freedom from government oppression, rather than when it achieved such exalted esteem.

TRIAL BY JURY: DEFENSE AGAINST DESPOTISM

When men form communities they soon come to recognize that the protection of property is the paramount consideration in drafting constitutions. Such legal protection, however, has never proved sufficient deterrent to a man or group of men from expropriating the property of others. This theft is often perpetrated by those elected or appointed to make or enforce the law and historically these legislators will go to great lengths to perpetuate their power and their influence over the property of their compatriots.

In light of this propensity of the powerful to deprive the governed of the full measure of their God-given liberty, the trial was developed as a way of providing those accused by government or by other men of violating the law of the land with a process by which guilt or innocence could be declared by a group of men equal to the accused in legal standing, in other words, a peer.

This equality of legal standing is the root of the word peer, in fact. The English word “peer” descends from the Latin word “par,” meaning “equal.”

Why would the equality of the accused and those tasked with taking the liberty of one of their fellowmen in their hands?

In his paper entitled “An Essay on the Trial by Jury,” Lysander Spooner sets out the necessity of placing a person’s future freedom in the hands of his peers, or political equals:

“To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government. This is done to prevent the government’s constituting a jury of its own partisans or friends; in other words, to prevent the government’s packing a jury, with a view to maintain its own laws, and accomplish its own purposes.

“It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor—that is, with the government.”

Throwing in one’s lot with others is an instinct of mankind, apparently. In his book Politics, Aristotle famously proclaimed that “a social instinct is implanted in all men by nature.” The forming of commonwealths is, well, common, and in the earliest civil polities, the citizens were related by blood and by marriage and would live in close enough proximity to permit one man to witness the virtue or vice of his neighbors.

Living in these smaller societies, men would naturally align themselves against the inevitable usurpation of authority into the hands of a “ruling class.” This division is as old as our currently available historical records. In and around Athens, for example, the Men of the Hills (the poor) were constantly being burdened by the Men of the Plains (the generationally wealthy) and the Men of the Coast (merchants made rich by trade), and the power procured by the newly acquired wealth of the tradesmen was resented by the founding families who were accustomed to making and breaking the law as they would.

Herein lies the genius of the jury!

A man living in a community whose constitution protected his liberty from the whim and will of the powerful could count on his countrymen’s fair evaluation of the evidence of his guilt, regardless of the designs of despots or the conspiracies of the covetous. As Forsyth explains of the ancient German approach to trials, “Nearness of neighborhood in such cases was deemed sufficient to qualify a man for being a witness, for he could hardly in those times be ignorant of matters of common repute around him.”

That is the jury. The jury, if it is properly composed of compatriots, would thwart the theft of tyrants; it would prevent the punishment of the innocent; it would blunt the blow of the book of law thrown at one who took a misstep, but whose reputation is held in high regard by his countrymen; and it would be, again, if justly and impartially empaneled, the first and last barricade between a man and those who would abuse the law to make themselves his master.

The jury, composed of, as described above, men of “maturity;” would also be, as the Frankish law demanded, “good men and true;” men who would not, who could not be enticed by designing despots into sacrificing neither his neighbor’s liberty nor his own rectitude and integrity.

SUB-HEAD: DO JURIES STILL EXIST?

As a former attorney, I can testify personally and with great sadness that the traditional and true definition of a jury has been abandoned. Today, lawyers representing the government and those representing the accused purposefully prevent men with even a whiff of familiarity with the defendant from sitting on the jury that will be tasked with weighing the evidence presented at trial.

Remarkably and regrettably, this process of elimination is the exact opposite of the origin and purpose of the paneling of a jury of one’s peers. Today, a jury is not composed of one’s peers, but of strangers without even a scintilla of personal knowledge of the notoriety or virtue of the man whose life, liberty, and property they take into their hands.

When we speak of the threat to the rights protected by the U.S. Constitution, the right to a trial by a jury of one’s peers is rarely included in the discussion. This is not only odd, but it is a great disservice to liberty, to the timeless traditions of our ancestors, and to the hope that no tricks of tyrants and no pressure by the powerful could deny a defendant of the liberty that is his by nature and by gift of God.

For those skeptical of the description of jury selection set out above, consider the following explanation of the jury selection process and the desirable qualities of jurors published by the U.S. Courts on its official website:

“Each district court randomly selects citizens’ names from lists of registered voters and people with drivers licenses who live in that district. The people randomly selected complete a questionnaire to help determine if they are qualified to serve on a jury.

“When a jury is needed for a trial, the group of qualified jurors is taken to the courtroom where the trial will take place. The judge and the attorneys then ask the potential jurors questions to determine their suitability to serve on the jury, a process called voir dire. The purpose of voir dire is to exclude from the jury people who may not be able to decide the case fairly. Members of the panel who know any person involved in the case, who have information about the case, or who may have strong prejudices about the people or issues involved in the case, typically will be excused by the judge. The attorneys also may exclude a certain number of jurors without giving a reason.”

To put an appropriately fine point on the problem, the tyrannical transformation of the United States of America from a confederation of republics into a consolidated nation ruled by black-robed oligarchs has robbed men and women of the United States of not only their right to have their cases considered by their peers, but they have been deprived of even the opportunity of access to such a process! As J. Kendall Few chronicled in his two-volume treatise on trial by jury:

“The opposing concept advocated by the commercial coalition is a form of ‘courthouse aristocracy,’ that is the administration of civil justice by a select few, exclusive of the great mass of the population, on the assumption that the supposedly superior intellect and judgment of those in control will produce more desirable results.”

Could the case be any clearer? Could the goal of a trial by a jury of one’s peers be any more endangered? Has government purposefully prevented Americans from understanding why their ancestors ardently preserved the right to a trial by jury, even against the efforts of tyrants to destroy it? Have juries been judged too likely to prevent the powerful from exerting their will?

THE FOUNDERS’ ESTIMATION OF WORTH OF TRIAL BY JURY

Finally, in due deference to the wisdom of our own Founding Fathers regarding the trial by jury as the sine qua non of a free society, I offer the following statements from that august generation on the subject:

South Carolina General Assembly (1751):

“We are firmly of the opinion that any person who shall endeavor to deprive us of so glorious a privilege as trials by juries is an enemy to this province.”

John Adams (1774):

“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”

Thomas Jefferson (1788):

“I consider trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”

Patrick Henry (1788):

“Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial.”

John Dickinson (1788):

“Trial by jury is the cornerstone of our liberty. We must guard it with jealous circumspection against those new and arbitrary methods of trials which may imperceptibly undermine it. Trial by jury is our birthright, who in opposition to the genius of United America, shall dare to attempt its subversion?”

Alexander Hamilton (1788):

“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”

James Madison (1789):

“Trial by jury in civil cases is as essential to secure the liberty of the people as tony one of the pre-existent rights of nature.”

]]>How Federal Programs Helped Rich White People and Corporations Steal Land from Poor Black Farmershttp://tenthamendmentcenter.com/2019/09/07/how-federal-programs-helped-rich-white-people-and-corporations-steal-land-from-poor-black-farmers/
Sat, 07 Sep 2019 11:22:49 +0000http://tenthamendmentcenter.com/?p=28688A lot of people believe that the federal government is a friend to liberty because it protected African-Americans against discrimination in the 1960s. But research shows that this was the exception to the rule, at best. Centralized authority, including the federal government, has historically brutalized minority populations. When it comes to civil rights, the conventional […]]]>

A lot of people believe that the federal government is a friend to liberty because it protected African-Americans against discrimination in the 1960s. But research shows that this was the exception to the rule, at best. Centralized authority, including the federal government, has historically brutalized minority populations.

When it comes to civil rights, the conventional narrative goes like this: African Americans were enslaved and then suffered extreme discrimination until the federal government stepped in during the 1960s and passed the Civil Rights Acts to protect them.

This narrative paints centralized-government as the hero. And while the Civil Rights Acts did extend protections to black people and hastened the end of the Jim Crow era, this kind of federal action to protect minorities is actually an anomaly. More often than not, the U.S. federal government has enacted and enforced policies that have facilitated discrimination and worse.

To begin with, National power was the tool of slavers. From the moment the Constitution was ratified forward, southern slavers relied on federal power and centralized authority to maintain the legal framework for slavery. It also depended on federal power to enforce the fugitive slave clause, even as free northern states appealed to their state sovereignty to protect their black citizens. Up until the end of the War Between the States, federal power was vigorously applied for the benefit of slavers to preserve their institution and protect their ‘property.’

And after the war, federal power continued to benefit those who would discriminate on the basis of race – particularly when it came to land ownership.

As The Atlantic put it, “A war waged by deed of title has dispossessed 98 percent of black agricultural landowners in America.”

Black landowners have lost 12 million acres of farmland over the last century. You might think this happened back in the dark depths of our past, but it didn’t. The losses mostly occurred in living memory – primarily from the 1950s onward. According to the former president of the Emergency Land Fund, black farmers lost in the neighborhood of 6 million acres of land from 1950 to 1969. According to The Atlantic, much of this land theft was accomplished under the authority of law.

“The land was wrested first from Native Americans, by force. It was then cleared, watered, and made productive for intensive agriculture by the labor of enslaved Africans, who after Emancipation would come to own a portion of it. Later, through a variety of means—sometimes legal, often coercive, in many cases legal and coercive, occasionally violent—farmland owned by black people came into the hands of white people. It was aggregated into larger holdings, then aggregated again, eventually attracting the interest of Wall Street.”

The Atlantic called this “a silent and devastating catastrophe, one created and maintained by federal policy.” [Emphasis added]

Federal agriculture policy was the key to this transfer of land ownership. During the New Deal era, the federal government took an increasing amount of control over American agriculture. By the 1950s, the feds regulated virtually every aspect of America’s farm economy and had almost complete control over farm credit. Wealthy white landowners and big agriculture conglomerates took advantage of this system and slowly divested thousands of African American farmers of their land.

It started with President Franklin D. Roosevelt’s “life raft for agriculture” – the Farm Security Administration.

“Although the FSA ostensibly existed to help the country’s small farmers, as happened with much of the rest of the New Deal, white administrators often ignored or targeted poor black people—denying them loans and giving sharecropping work to white people.”

In 1945, the Farmers Home Administration, (FmHA) replaced the FSA. According to The Atlantic, “The FmHA quickly transformed the FSA’s programs for small farmers, establishing the sinews of the loan-and-subsidy structure that undergirds American agriculture today.”

There is no denying that African Americans suffered from racism. But you shouldn’t lose sight of the fact that government actions gave racists their power, from Jim Crow laws at the state and local level to federal farm policy that enabled white people to dispossess black Americans of their land.

In 1961, President John F. Kennedy’s administration created another federal program known as the Agricultural Stabilization and Conservation Service. (ASCS.) This agency worked alongside FmHA to provide loans to farmers. The Atlantic described how these federal programs came to dominate agriculture in the U.S. with disastrous results for black farmers. As The Atlantic points out, the members of committees doling out money and credit established by these federal programs were elected locally, during a time when black people were prohibited from voting.

“Through these programs, and through massive crop and surplus purchasing, the USDA became the safety net, price-setter, chief investor, and sole regulator for most of the farm economy in places like the [Mississippi] Delta. The department could offer better loan terms to risky farmers than banks and other lenders, and mostly outcompeted private credit. In his book Dispossession, Daniel calls the setup ‘agrigovernment.’ Land-grant universities pumped out both farm operators and the USDA agents who connected those operators to federal money. Large plantations ballooned into even larger industrial crop factories as small farms collapsed. The mega-farms held sway over agricultural policy, resulting in more money, at better interest rates, for the plantations themselves. At every level of agrigovernment, the leaders were white.” [Emphasis added]

White government officials and bureaucrats were in a perfect positions of power to help their white buddies add to their landholdings. According to The Atlantic, USDA audits and investigations revealed that “illegal pressures levied through its loan programs created massive transfers of wealth from black to white farmers.” Investigations by the United States Commission on Civil Rights reportedly uncovered “blatant and dramatic racial differences in the level of federal investment in farmers.” The FmHA provided much larger loans for small and medium-size white-owned farms, relative to net worth than it did for similarly sized black-owned farms. The report said the FmHA policies “served to accelerate the displacement and impoverishment of the Negro farmer.”

The Atlantic provides anecdotal evidence revealing how unscrupulous people used these federal programs for their own benefit.

“In the 1950s and ’60s, Norman Weathersby, a Holmes County Chevrolet dealer who enjoyed a local monopoly on trucks and heavy farm equipment, required black farmers to put up land as collateral for loans on equipment. A close friend of his, William Strider, was the local FmHA agent. Black farmers in the area claimed that the two ran a racket: Strider would slow-walk them on FmHA loans, which meant they would then default on Weathersby’s loans and lose their land to him. Strider and Weathersby were reportedly free to run this racket because black farmers were shut out by local banks.

“Analyzing the history of federal programs, the Emergency Land Fund emphasizes a key distinction. While most of the black land loss appears on its face to have been through legal mechanisms—“the tax sale; the partition sale; and the foreclosure”—it mainly stemmed from illegal pressures, including discrimination in federal and state programs, swindles by lawyers and speculators, unlawful denials of private loans, and even outright acts of violence or intimidation. Discriminatory loan servicing and loan denial by white-controlled FmHA and ASCS committees forced black farmers into foreclosure, after which their property could be purchased by wealthy landowners, almost all of whom were white. Discrimination by private lenders had the same result. Many black farmers who escaped foreclosure were defrauded by white tax assessors who set assessments too high, leading to unaffordable tax obligations. The inevitable result: tax sales, where, again, the land was purchased by wealthy white people.”

Of course, racism was also rampant in the private lending sector, particularly in the deep South. Still, there were always bankers who were either free from the scourge of racism or cared more about the color of money than the color of skin. But as The Atlantic alludes to, federal loan programs dominated the market and squeezed out many private lenders. In a system free from government monopolization, there almost certainly would have been more available credit with better terms available for black farmers.

The bottom line is that the existence of federal government programs, coupled with racism, allowed black people’s land to be stolen from them. Racism alone couldn’t have accomplished this without government power to make it actionable.

The widespread notion that centralized national power is good for minorities is a myth. Centralized power has never been friendly toward minorities. From the Jews in Germany, to the Ukrainians in the U.S.S.R, to the Armenians in the Ottoman Empire, to Africans in the United States, centralized governments have historically oppressed minorities and sometimes worked to exterminate them.

The Civil Rights Act notwithstanding, history shows that the U.S. federal government has by-and-large followed the historical pattern by facilitating, both directly and indirectly, slavery and discrimination.

]]>Does the Executive Branch Have Too Much Power?http://tenthamendmentcenter.com/2019/09/05/does-the-executive-branch-have-too-much-power/
Thu, 05 Sep 2019 12:48:04 +0000http://tenthamendmentcenter.com/?p=28699After years of faithless Congresses legally but unconstitutionally ceding power to the presidency, we have arrived where we are today]]>

Does the president of the United States have too much power?

That question has been asked lately with respect to President Donald Trump’s use of federal funds to construct 175 miles of sporadic walls along portions of the 2,000-mile common border between Texas and Mexico. After Congress expressly declined to give him that money, Trump signed into law — rather than vetoed — the legislation that denied him the funds he sought and then spent the money anyway.

It has also been asked with respect to his imposition of sales taxes — he calls them tariffs — on nearly all goods imported into the United States from China, taxes that only Congress can constitutionally authorize. And it has been asked in connection with the presidentially ordered mistreatment of families seeking asylum in the United States by separating parents from children — in defiance of a court order.

This question of presidential power is not an academic one. Nor is it a question unique to the Trump presidency, as it has risen numerous times before Trump entered office. But the audacious manner of Trump’s employment of presidential powers has brought it to public scrutiny.

Here is the backstory.

The Constitution was written in the aftermath of the American Revolution, a war fought against a kingdom, most of whose domestic subjects articulated that the king had been chosen by God to rule over them.

The colonists in America, prodded by radicals like Sam Adams, Patrick Henry and Thomas Jefferson, profoundly rejected that idea. They argued that each individual was sovereign and a repository of natural rights. Jefferson articulated as much in the Declaration of Independence.

So, when it came time to craft a new government here, the drafters of the Constitution, led by Jefferson’s friend James Madison, made certain that there would be no king. Congress would write the laws. The president would enforce them. The judiciary would interpret them. This separation of powers is what the late Justice Antonin Scalia called the most unique and effective aspect of American government.

Why is that?

For starters, Madison feared the accumulation of too much power in any one branch of the government. With the exception of the uniqueness and violence of the Civil War, for 130 years, the branches remained within their confines. For that matter, the federal government did so as well.

Congresses and presidents accepted the Madisonian view that the federal government could only do what the Constitution affirmatively authorized them to do, and all remaining governmental tasks would be addressed by the states. This, too, was part of Madison’s genius in order to impede the concentration of too much power in the hands of too few.

All that changed when a former professor of constitutional law — who was not a lawyer — entered the White House. Woodrow Wilson believed and behaved as though Congress could legislate on any problem for which there was a national political will, except that which was expressly prohibited by the Constitution.

The Wilsonian view of government and the Madisonian view of government are polar opposites.

At the same time that Wilson was turning the Constitution on its head, he was also signing legislation that created the agencies of the administrative state. These agencies, he argued, should be filled with experts in their fields — the Food and Drug Administration, the Federal Trade Commission, to name a few — because experts would bring better government.

The agencies were authorized to write regulations that have the power of law, to enforce those regulations and to interpret them. This slippage of constitutional authority to creatures alien to the Constitution — which branch of government are they in? — masked a parallel slippage of power from Congress to the presidency.

Just as Wilson persuaded Congress that the feds needed experts to run parts of the government, he and his successors persuaded Congress that the presidency should be the repository of emergency powers.

The Constitution does not authorize any emergency powers; nevertheless, the War Powers Resolution lets the president fight any war for 90 days without congressional authorization, even though the Constitution makes clear that only Congress can declare war. Other national emergency statutes give presidents short-term near-dictatorial powers — like imposing taxes by calling them tariffs — without defining what is an emergency.

Scalia railed against all this — and the Supreme Court often struck down power transfers from Congress to the president. It did so not to preserve the institutional integrity of Congress but to uphold the principle of the separation of powers that Madison crafted as a bulwark against tyranny. The constitutional allocation of power among the branches is not for them to alter.

Its equilibrium was intended to maintain tension and even jealousy among the branches — and thereby undergird personal liberty. Madison’s articulated fear was “a gradual concentration of the several powers in the same” branch. Scalia called this gradual concentration of power in the presidency a wolf in sheep’s clothing that became a bare naked wolf.

After years of faithless Congresses legally but unconstitutionally ceding power to the presidency, we have arrived where we are today — a president who spends unappropriated funds, raises taxes, defies courts and changes immigration laws on his own. I have written before that the Republicans who rejoice in this will weep over it when a Democrat is in the White House. No president should have unconstitutional powers.

I have also written that the guarantees of the Constitution — separation of powers foremost among them — are only effective when the folks in whose hands we repose the Constitution for safekeeping are faithful to their oaths to uphold it.

When they are, our freedoms flourish. When they aren’t — power abhors a vacuum — the temptation of tyranny arises.

]]>Don’t Believe What Cops Tell You About Facial Recognitionhttp://tenthamendmentcenter.com/2019/09/05/dont-believe-what-cops-tell-you-about-facial-recognition/
Thu, 05 Sep 2019 11:52:32 +0000http://tenthamendmentcenter.com/?p=28697You can’t believe cops when they tell you they don’t use facial recognition. Even if your local police department claims it doesn’t own or use the technology, it may well be accessing facial recognition via information sharing with other law enforcement agencies. Government officials want to keep facial recognition technology secret and they’re not above […]]]>

You can’t believe cops when they tell you they don’t use facial recognition.

Even if your local police department claims it doesn’t own or use the technology, it may well be accessing facial recognition via information sharing with other law enforcement agencies.

Government officials want to keep facial recognition technology secret and they’re not above misleading the public.

Detroit Mayor Mike Duggan sent out a tweet that implied the city’s police department was not using facial recognition technology, but he worded it a way that obscured the truth. In fact, the city spent more than $1 million on facial recognition technology back in 2017 and the Detriot Police Department uses it.

But Duggan isn’t alone in his misdirection.

The City of New Orleans adamantly insists it “does not use facial recognition software.” It even has a line in the privacy policy of its Real-Time Crime Center surveillance hub claiming, “Facial recognition is not utilized by the System.”

And yet the New Orleans Police Department identified a suspect in a 2018 mugging based on facial recognition. How did this happen if the NOPD doesn’t use facial recognition?

As an article published by OneZero put it, “the NOPD has back-channel access to the state’s facial recognition program.” According to the report, the police department relied on technology operated by the Louisiana State Police after local investigators sent a wanted poster with a photo of the suspect to the state fusion center.

According to court records, a state police technician with the Louisiana State Fusion Center, which runs a facial recognition program, picked up the image from the poster and — without NOPD knowledge — ran it through the software. The Fusion Center technician in charge of the case later sent along one of the matches generated by the program to her supervisor who, according to emails obtained by OneZero, passed it on to a NOPD lieutenant overseeing the case, writing that the technician “was able to locate a possible match” using the facial recognition program. According to the emails, the NOPD lieutenant then forwarded the match to the NOPD detective, writing: “Looks like they identified your guy.”

In a statement, a spokesperson for New Orleans Mayor LaToya Cantrell reiterated that “by policy, facial recognition software is not used in the city’s Real-Time Crime Center.” But she said other law enforcement agencies can request archive footage that has been uploaded to NOPD’s digital evidence platform. When another agency makes a request, “the respective agency is obligated to comply with their agency’s policies and procedures.”

“Even if NOPD aren’t using [facial recognition technology], but they’re sending out the images — where is there control against government abuse and accountability?”

The statement from the mayor’s office reveals a disturbing reality. Photographs and camera footage vacuumed up by surveillance cameras dispersed throughout New Orleans and fed into the Real-Time Crime Center surveillance hub is stored and made available to law enforcement agencies across the country through fusion centers and other information-sharing channels.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

In other words, facial surveillance in cities like New Orleans has national implications. And similar scenarios are playing out in cities across the country.

For instance, Stop LA Spying noted in a tweet that In 2017, “LAPD Commish Matt Johnson made a big deal about adding a point to LAPD’s policy on drones, that drones ‘will not be deployed or used with any facial recognition software or analysis.’ But drones are deployed based on info culled by Palantir, that uses facial recognition.”

The Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.

“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”

George Orwell’s Big Brother would have drooled over the all-encompassing surveillance system quietly under construction in the United States. Facial recognition technology linked to federal, state and local databases can track your every move just by pointing a camera at your face. It effectively turns each of us into a suspect standing in a perpetual lineup.

As Michael Boldin said in a recent video, the growing public debate about the use of facial recognition surveillance in Detroit, New York, and California gives some insight on what to expect everywhere this technology is launched.

With their rapid proliferation, the potential for abuse and the threat to basic privacy rights posed by facial recognition surveillance, state and local governments need to make oversight and placing limits on law enforcement use of facial recognition a top priority. At the least, law enforcement agencies should be required to get local government approval in a public meeting before obtaining facial recognition technology. The TAC’s Local Ordinance to Limit Surveillance Technology covers this.

]]>Today in History: Treaty of Paris Signed, Formally Ending War for Independencehttp://tenthamendmentcenter.com/2019/09/03/today-in-history-treaty-of-paris-signed-formally-ending-war-for-independence/
Tue, 03 Sep 2019 15:49:25 +0000http://tenthamendmentcenter.com/?p=28694Today in history, on September 3 1783, the Treaty of Paris was signed, formally ending the American War for Independence the next year. In 1781, a major victory was scored over the British at Yorktown by Continental Army commander George Washington, with considerable French support. British General Charles Cornwallis’ entire army was captured, and Britain […]]]>

Today in history, on September 3 1783, the Treaty of Paris was signed, formally ending the American War for Independence the next year.

In 1781, a major victory was scored over the British at Yorktown by Continental Army commander George Washington, with considerable French support. British General Charles Cornwallis’ entire army was captured, and Britain was forced to suspend combat operations in North America. In the following two years, however, the war officially continued as Britain refused to recognize peace. Meanwhile, The American states maintained the official position that complete independence was the minimum demand for making peace with Britain.

Back in London, the political stock of those who had opposed the war against the American states from the beginning, such as Edmund Burke and Charles James Fox, was rapidly rising. With the Cornwallis’ defeat in Yorktown, King George III faced scrutiny from Parliament, which eventually threatened to withhold funding to wage the king’s war.

In February of 1782, British Parliament finally voted to halt war operations, though about 30,000 soldiers remained in North America. Politically, though, the severance of the United States from Britain was far from a done deal.

Fox, a leader of the British Whigs, urged the ministry to grant immediate independence prior to any other concessions or arrangements. However, with the passing of Lord Rockingham and the selection of The Earl of Shelburne to replace him, Fox’s radical views were prevented from influencing the peace negotiations.

At the same time, French diplomat Charles Gravier, the Comte de Vergennes, opposed American independence as a precondition to the settlement of other terms. Vergennes believed that American concessions to France were due, including the recognition of French territory east of the Mississippi River. At this point, it was expected that any peace agreement would be a three-way deal between Britain, France, and the United States.

While Vergennes was on cordial terms with Benjamin Franklin, the famed American diplomat in London, he remained at odds with American commissioners John Jay and John Adams – both of whom distrusted him. When Franklin and Jay agreed to abandon American demands for immediate recognition of independence prior to any other concessions, it infuriated Adams so much so that he mulled resigning from the peace commission.

Even so, after a series of unilateral deliberations between the American and British diplomats, a series of stipulations were agreed to. The 1783 Treaty of Paris, as it was to be known, contained the following provisions:

First, the independence of the American states was unambiguously recognized. Rather than the acknowledgment of a singular American union, the Treaty of Paris made clear that each state was to be considered a sovereign country with independent political authority.

As Article 1 of the treaty stated, all of the American polities were to be considered “free sovereign and Independent States,” and that Britain would relinquish “all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.”

Second, all wartime hostilities were to cease and British army and naval forces, along with remaining British forts, were to be evacuated with “all convenient speed.” Third, all land north of the Ohio River and south of Canada was to be ceded to the United States. Fourth, rights to fisheries off Newfoundland and Nova Scotia were guaranteed to all Americans.

Fifth, the rights and property of Tories in the United States were to be recognized, and the states were ordered to repay the Tories for estates that had been confiscated during the course of the war. Future confiscation of Tory property was expressly prohibited, and all prisoners of war were to be released. Sixth, debts accrued between citizens of both Britain and any American state were to remain undisturbed and in effect. Seventh, navigation of the Mississippi River would be guaranteed to each American state and to Britain. However, since Spain controlled access to the river, this clause was virtually meaningless in practice.

The Americans secured peace through the Treaty of Paris with Britain alone, mostly at the urging of Jay. This maneuver effectively pushed Vergennes out of deliberations, and the French diplomat consequently felt deeply betrayed by the Americans. Believing the terms toward the United States to be too generous, he commented that “the English buy peace rather than make it.”

While the move obviously disturbed French-American relations to some extent, some consider Jay’s shrewd behavior as one of the greatest American diplomatic achievements. This was because it granted the American states broad territorial control, expansive navigation rights, and unmistakable political autonomy. The Treaty of Paris also dismayed Spain, which thought the agreement would threaten its North American holdings, such as Spanish Florida.

The treaty also represented a significant British betrayal of their Indian allies in North America, who were to suffer most by being left alone in United States territory without military support from a European power.

Under the Articles of Confederation, treaties required the assent of a majority of states in Congress. This benchmark was finally realized in January of 1784, and the British crown ratified that April.

Confirming that the sovereignty of the states pre-dated the general government, Great Britain signed an agreement with the states separately. This is iterated in Article I of the Treaty:

“His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.”

Revealing the primacy of the states, the treaty held the arrangement to be one between Britain and each of the states individually. This conception was also illustrated under the Articles of Confederation, of which Article II described as “a firm league of friendship” wherein the states retained their “sovereignty, freedom, and independence,” and every “power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

Undoubtedly, the 1783 Treaty of Paris left an unparalleled impression upon the world, guaranteeing the establishment of the United States as world powers. Even though the agreement acknowledged peace, relations between the United States and Britain remained strained, especially due to the practice of impressment and the lack of trade relations.

]]>A Nightmarish Army of Unblinking Spieshttp://tenthamendmentcenter.com/2019/09/02/a-nightmarish-army-of-unblinking-spies/
Mon, 02 Sep 2019 10:11:45 +0000http://tenthamendmentcenter.com/?p=28668The surveillance state constantly expands. That thing that seems like no big deal today can suddenly become a big deal as technology evolves. Take the proliferation of surveillance cameras. We’ve come to accept electronic eyes recording our every move like a normal part of life. Most of the time we hardly even notice the cameras. […]]]>

The surveillance state constantly expands. That thing that seems like no big deal today can suddenly become a big deal as technology evolves.

Take the proliferation of surveillance cameras. We’ve come to accept electronic eyes recording our every move like a normal part of life. Most of the time we hardly even notice the cameras. At some level, we may realize we’re being recorded, but we figure nobody will ever actually watch the footage. Even with cameras everywhere, we feel relatively safe in our anonymity.

But how would you feel if you knew somebody was monitoring every camera pointed in your direction 24/7. Scrutinizing your every move. Judging your every action. Noting whom you associate with and scouring your facial expressions for signs of suspicious behavior?

We’re rapidly getting to that place.

Of course, we’re not talking about human “somebodies.” We’re talking about artificial intelligence – “AI agents” capable of scouring video footage every second of every day and flagging “suspicious” behavior.

The ACLU recently released a report on the rapidly growing use of “video analytics” as a surveillance tool. As the ACLU puts it, AI has the potential to turn every-day surveillance cameras into a “nightmarish army of unblinking watchers.”

What we found is that the capabilities that computer scientists are pursuing, if applied to surveillance and marketing, would create a world of frighteningly perceptive and insightful computer watchers monitoring our lives. Cameras that collect and store video just in case it is needed are being transformed into devices that can actively watch us, often in real-time. It is as if a great surveillance machine has been growing up around us, but largely dumb and inert — and is now, in a meaningful sense, “waking up.”

According to the report, police and government intelligence agencies have used AI to develop “anomaly detection” algorithms that can pick up on “unusual,” “abnormal,” “deviant,” or “atypical” and flag such individuals for further scrutiny. As the ACLU reports, this could have far-reaching ramifications and brings with it tremendous potential for abuse.

Think about some of the implications of such techniques, especially when combined with other technologies like face recognition. For example, it’s not hard to imagine some future corrupt mayor saying to an aide, “Here’s a list of enemies of my administration. Have the cameras send us all instances of these people kissing another person, and the IDs of who they’re kissing.” Government and companies could use AI agents to track who is “suspicious” based on such things as clothing, posture, unusual characteristics or behavior, and emotions. People who stand out in some way and attract the attention of such ever-vigilant cameras could find themselves hassled, interrogated, expelled from stores, or worse.

AI also raises concerns about accuracy. We’ve already heard about problems with facial recognition systems misidentifying people – particularly minorities. As the ACLU puts it, “Many or most of these [AI] technologies will be somewhere between unreliable and utterly bogus.”

The interconnectedness of the U.S. surveillance state magnifies danger and the threat to your privacy these systems pose. If a local camera happens to flag you, you will almost certainly end up in national databases accessible by police and government officials across the U.S. Federal, state and local law enforcement agencies can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

George Orwell’s Big Brother would drool over the all-encompassing surveillance system quietly under construction in the United States. Cameras equipped with facial recognition technology. monitored by “AI agents,” and linked to federal, state and local databases can track your every move just by pointing a camera at your face. It effectively turns each of us into a suspect standing in a perpetual lineup.

Police operate these camera systems with little oversight and oftentimes in complete secrecy.

With their rapid proliferation, the potential for abuse and the threat to basic privacy rights posed by camera surveillance, state and local governments need to make oversight and placing limits on law enforcement use of facial recognition a top priority. At the least, law enforcement agencies should be required to get local government approval in a public meeting before obtaining facial recognition technology. The TAC’s Local Ordinance to Limit Surveillance Technology covers this.

]]>The Historical Use of “Red Flag” Lawshttp://tenthamendmentcenter.com/2019/08/31/the-historical-use-of-red-flag-laws/
Sat, 31 Aug 2019 11:38:32 +0000http://tenthamendmentcenter.com/?p=28683Red flag law has been proverbial for an enactment masquerading as a safety measure but really passed for more sinister reasons.]]>

Under pressure to “do something” about mass killings, some Republican politicians have followed their Democrat counterparts by endorsing red flag laws. These laws authorize confiscation of firearms if a judge finds the owner poses a risk to himself or others.

But the history of red flag laws should make those politicians reconsider.

Modern red flag laws deny gun owners prior notice or a chance to defend themselves against an initial confiscation order. A judge may issue the order after an uncontested hearing. In some states, the person seeking the order is held to a relatively low burden of proof.

This disregard for due process would be wrong even if red flag laws were proven effective. But the few studies on the subject suggest they are not. One study even concludes that these measures may increase rape.

In politics, if we know a proposal doesn’t serve its advertised purpose, then the advertised purpose usually is not the real one. In this case, the dominant motive seems to be to take guns away from people, despite the undeniable role of firearms in self-defense and crime prevention.

Ironically, by adopting the term “red flag law,” promoters inadvertently admitted their real motive is not safety. This is because the phrase “red flag law” has been proverbial for an enactment masquerading as a safety measure but really passed for more sinister reasons.

Here is the background:

Many people think automobiles were invented around the turn of the last century. But a steam-driven car successfully navigated the streets of London as early as 1803. A car powered by an internal combustion engine was designed in 1808. By mid-century, steam autos appeared regularly on English roads.

This new invention—then often called the “road locomotive”—posed a financial threat to entrenched special interests. Railroads and horse-drawn carriage services (such as stage coaches) feared competition. Buggy makers and farmers who raised horses for sale recognized that automobiles could reduce public demand for their products.

So instead of adapting to the market, those special interests lobbied politicians for laws protecting them from competition. The advertised reason was automobile safety. But the dominant motivation was to regulate automobiles into oblivion.

Beginning in 1861, the British Parliament and some American state legislatures and cities imposed draconian restrictions on “road locomotives.” Some enacted absurdly low speed limits such as two miles per hour in town and four miles per hour on the highway. (Light horse-drawn carriages routinely ran down the highway at 12 miles per hour). Another rule was that any person with a horse could force a car to stop for any reason or for no reason, simply by raising his hand. A Pennsylvania bill (vetoed by the governor) would have required the owner of any automobile who encountered a horse or other livestock to dismantle his vehicle and conceal the parts in the adjacent bushes!

The most famous enactment of this kind was the British Locomotive Act of 1865 (28-29 Vict. c. 83). Among other regulations it mandated that every car have a crew of at least three persons, one of whom was to “precede such Locomotive on Foot by not less than Sixty Yards, and shall carry a Red Flag constantly displayed, and shall warn the Riders and Drivers of Horses of the Approach of such Locomotives, and shall signal the Driver thereof when it shall be necessary to stop, and shall assist Horses, and Carriages drawn by Horses, passing the same.”

The requirement that a crew member precede the car with a red flag gave these restrictive enactments their popular name: red flag law.

Unfortunately, red flag laws stalled automobile progress for years. After they were loosened late in the 19th century, progress resumed. That is why many think of cars as not being invented until the late 19th or early 20th centuries.

In 1904, John Scott-Montagu, a British M.P., wrote a survey of automobile laws for an American scholarly journal. Scott-Montagu decried “the continual, misdirected effort of the law to control vehicles about which the law-makers have had, as a rule, but shadowy and erroneous ideas . . . Future generations . . . will laugh at the cumbrous and illogical efforts their forefathers made to restrict the use of the automobile . . . .”

Scott-Montagu might just as well have been describing red flag laws of today.

]]>Donald Trump’s Bizarre Economic Balancing Acthttp://tenthamendmentcenter.com/2019/08/29/donald-trumps-bizarre-economic-balancing-act/
Thu, 29 Aug 2019 21:24:12 +0000http://tenthamendmentcenter.com/?p=28672The fact is the economy isn't great. It hasn't been great for years. It's a bubble-economy built on debt facilitated by easy-money central banking.]]>

President Donald Trump is trying to advance two conflicting narratives about the U.S. economy. A pair of tweets the president sent out within an hour of each other demonstrate the bizarre balancing act he’s trying to maintain.

The Fake News LameStream Media is doing everything possible the “create” a U.S. recession, even though the numbers & facts are working totally in the opposite direction. They would be willing to hurt many people, but that doesn’t matter to them. Our Economy is sooo strong, sorry!

Doing great with China and other Trade Deals. The only problem we have is Jay Powell and the Fed. He’s like a golfer who can’t putt, has no touch. Big U.S. growth if he does the right thing, BIG CUT – but don’t count on him! So far he has called it wrong, and only let us down….

“What the Market wanted to hear from Jay Powell and the Federal Reserve was that this was the beginning of a lengthy and aggressive rate-cutting cycle…”

Just a couple of days before disparaging the Fed chair’s golf game, Trump called for a 100 basis point interest rate cut.

…..The Fed Rate, over a fairly short period of time, should be reduced by at least 100 basis points, with perhaps some quantitative easing as well. If that happened, our Economy would be even better, and the World Economy would be greatly and quickly enhanced-good for everyone!

To put Trump’s demand into perspective, a 100 basis point cut would take the interest rate down to 1 percent. That would equal the lowest level Alan Greenspan pushed interest rates down to in 2003 during the depths of the recession that followed the popping of the dot-com bubble and the 9/11 terror attacks.

In fact, the Trump economy has already benefited tremendously from easy monetary policy. Although theFederal Reserve began to normalize rates in December 2015 after holding them at zero for nearly a decade, it didn’t get very far. The central bank nudged rates up four times in 2018. But in December of that year, the stock market crashed and the Fed reversed course after its December hike. First, it gave us the “Powell Pause,” and then a rate cut in July. The Fed’s march toward “normal” got us to a paltry 2.5 percent.

That’s not normal.

In contrast, after Greenspan dropped rates to 1 percent during the post-dot-com bubble recession, the Fed pushed rates up to 5.25 percent before the ensuing housing bubble popped in 2007.

Spending Out the Wazoo

Fiscal stimulus in the form of government deficit spending has also helped prop up the economy. In a nutshell, the federal government has spent money out the wazoo since Trump took office.

To date, the federal government has spent over $3.7 trillion in fiscal 2019, according to the latest Treasury Department report. Year-over-year spending growth is at a nearly nine-year high. Uncle Sam spent $371 billion in July alone. That was 23 percent more than the government spent in July 2018.

Deficits typically shrink significantly during a post-recession recovery and then spike during the subsequent downturn. As McMaken notes, after the 1990-91 recession, deficits generally got smaller, until growing again in the wake of the dot-com bust. Deficits then shrank during the short expansion from 2002 to 2007. During the first part of the post-Great Recession expansion, deficits shrank again. But since late 2015, deficits have only gotten larger, and are quickly heading toward some of the largest non-recession deficits we’ve ever seen.

In fact, the 2019 deficit will likely eclipse $1 trillion. This is a recession-like deficit even as the economy is supposedly booming.

What Does It All Mean?

In simple terms, the “great” Trump economy is being propped up by extraordinary stimulus – both monetary and fiscal. It’s the kind of stimulus you’d expect during a steep economic downturn. And the president wants more of it.

This reveals the incoherence of the president’s economic messaging. Why do you need extraordinary stimulus if you have the best economy in the history of forever? Why do you need interest rates set at the level they were during the recession that followed the popping dot-com bubble?

The reality is that the Federal Reserve’s easy-money policies have driven economic growth and asset prices since the 2008 Financial Crisis. It drove economic growth and the surge in the stock markets during the later years of the Obama administration and it continued to drive that growth after Trump took office.

Ironically, the president accurately called the stock market a “big, fat, ugly bubble” during the 2016 campaign. After he took up residence in the Oval Office, he branded the bubble with a big Trump “T” and adopted it as his own.

This explains why Trump is so desperate for more interest rate cuts. He knows the bubble economy can only keep limping along with more stimulus. And he needs the economy to keep limping along until after the 2020 election.

This also explains why Trump has suddenly started talking about tax cuts. And there is no mention of spending cuts. In fact, Pres. Trump recently signed a bipartisan budget deal that will increase discretionary spending from $1.32 trillion in the current fiscal year to $1.37 trillion in fiscal 2020 and then raises it again to $1.375 trillion the year after that. The deal will allow for an increase in both domestic and military spending.

Tax cuts with no spending cuts mean more deficit spending. This is pure Keynesian fiscal stimulus. Again – why is this necessary if the economy is “great?”

The fact is the economy isn’t great. It hasn’t been great for years. It’s a bubble-economy built on debt facilitated by easy-money central banking.

The U.S. economy is heading for a recession. The recent recession chatter isn’t some kind of evil media plot to make Trump look bad. A recession has been looming for a long time. Trump has managed to delay the inevitable thanks to tax cuts and recession-like deficit spending. Jerome Powell lent him a helping hand with a little monetary stimulus when the Fed did a 180 on interest rate normalization earlier this year and cut rates in July. But you can only kick the can down the road for so long until you run out of road.

The economics of the Fed-induced boom-bust cycle guarantee a recession. You can’t really blame Trump, but politics being what they are, he will get the game. At that’s mostly on him. After all, he took credit for the bubble. That means he gets the blame when it pops.

The president will undoubtedly continue to maintain this bizarre balancing act, but a fall isn’t far away.

]]>Sound Money Showdown in the Stateshttp://tenthamendmentcenter.com/2019/08/28/sound-money-showdown-in-the-states/
Wed, 28 Aug 2019 11:37:31 +0000http://tenthamendmentcenter.com/?p=28643Policies relating to sound money have been the subject of substantial debate at the state level this year, with bills, hearings, and/or votes taking place in nearly a dozen state legislatures. Here is an overview of the victories (both offensive and defensive) for sound money during the 2019 session. The first step toward currency competition […]]]>

Policies relating to sound money have been the subject of substantial debate at the state level this year, with bills, hearings, and/or votes taking place in nearly a dozen state legislatures. Here is an overview of the victories (both offensive and defensive) for sound money during the 2019 session.

The first step toward currency competition is to remove every kind of taxation imposed on constitutional money. Given its practical importance, the hottest issue in the states has been taxation—i.e. whether citizens should face a levy when buying or selling gold and silver.

Senate Bill 502, sponsored by Senator Craig Blair, exempted precious metals from the state’s sales tax. The West Virginia bill removing sales taxes passed overwhelmingly through both chambers, and Governor Jim Justice signed SB 502 into law. A more ambitious bill, House Bill 2684 introduced by West Virginia Delegate Pat McGeehan, aimed to remove all taxes (sales tax, corporate income tax, and personal income tax) from gold and silver.

House Bill 2140, introduced by Kansas Representative Jim Kelly, included a sales tax exemption on the sale of gold and silver as part of a larger bill rife with new taxes. Governor Laura Kelly signed the measure in May.

Since 2014, Nebraska has recognized gold and silver as money and waives sales taxes on the metals. However, a few tax-revenue-hungry politicians tried to sneak a new sales tax on the metals into a larger bill earlier this year. After sound money advocates and in-state supporters mobilized to persuade Nebraska legislators that taxing money is wrong, the cynical new tax was removed from the bill.

Washington State has not collected sales taxes on sound money for more than three decades. This year, however, we faced two serious attacks on gold and silver in Olympia. I joined Dan Duncan and other in-state dealers and policy experts to warn legislators of the grave policy error they were considering—a blunder that would drive coin conventions and investment dollars to neighboring states.

After overwhelming backlash from in-state coin dealers, grassroots supporters, and the Sound Money Defense League, both Washington repeal bills died in committee.

The battle to preserve an existing sales tax exemption did not succeed in Ohio. Under the dark cloud left by a rare-coin scammer who stole tens of millions of dollars from Buckeye State taxpayers a decade ago, the legislature ignored the pleas of hundreds of taxpayers, business owners, and collectors and revoked the sales-tax exemption for gold and silver.

We’re disappointed in this setback at the hands of tax-hungry politicians. Any tax-revenue proceeds Ohio gains will almost certainly be offset by lost revenues when business and coin conventions flee the state. The Sound Money Defense League hopes to persuade Ohio’s legislature to rectify this policy error in the future.

Wisconsin is still considering Assembly Bill 200, introduced by Representative Shae Sortwell. This bill aims to remove sales taxes from gold and silver and should be heard in the fall.

Several other states, including Arkansas, Maine, Minnesota and Tennessee actively considered measures to remove sales taxes on sound money—with formal hearings occurring in all but Minnesota. Although these efforts came up short this year, a foundation of support has been established for renewed efforts next year.

In total, 39 states now have full or partial exemptions from sales taxes on the monetary metals.

Sound money allies in Wyoming introduced three bills to enable the state treasurer to invest state funds in physical gold and silver held securely in or near the state. These measures ignited a discussion as to whether the state treasurer already has the authority to protect state funds by holding gold—and it put a spotlight on Wyoming’s staggering losses on its investments in Third-World debt (hundreds of millions of dollars lost) while having now ownership in even a single ounce of gold.

While these Wyoming bills did not pass, the Wyoming state treasurer is reportedly exploring how best to incorporate gold into the state’s portfolio to protect its reserves.

An ally in Arizona introduced a similar bill to Wyoming’s, but the sunbelt state does not currently have reserve funds which can be allocated to the monetary metals – the state’s modest reserves have been pledged as collateral for bank loans on government buildings!

The large number of bills considered and passed during the most recent legislative sessions proves that sound money is no longer a fringe concept relegated to whispers in dark corners. The Federal Reserve has failed as a steward of the dollar since its creation. Individuals, state legislatures, and even other countries are waking up to the value and importance of sound money.

Grasping the importance of sound money and seeing success at the state level, our allies are expected to introduce additional sound money measures next session. Building on the success of 2019, all eyes are on 2020 as sound money continues to gain acceptance once again.

]]>What Does the Militia Act of 1792 Tell Us About the Second Amendment?http://tenthamendmentcenter.com/2019/08/26/what-does-the-militia-act-of-1792-tell-us-about-the-second-amendment/
Mon, 26 Aug 2019 11:18:05 +0000http://tenthamendmentcenter.com/?p=28678Whenever a debate comes up relating to the Second Amendment, somebody inevitably asserts that the right to keep and bear arms only applies to members of the National Guard. They come to this conclusion based on the first clause of the Second Amendment – “A well regulated Militia, being necessary to the security of a […]]]>

Whenever a debate comes up relating to the Second Amendment, somebody inevitably asserts that the right to keep and bear arms only applies to members of the National Guard.

They come to this conclusion based on the first clause of the Second Amendment – “A well regulated Militia, being necessary to the security of a free State…” But even if that clause limited the right to keep and bear arms to militia members – and it doesn’t – those who make the “National Guard only” argument don’t understand what the militia actually was at the time.

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor… [Emphasis added]

Practically speaking, “the whole people” generally meant all able-bodied white men. The point is the militia wasn’t a select military force. It was a defense force made up of the general population. In fact, part of the reason the Second Amendment was proposed was to ensure the people at large would not be disarmed and replaced by a “select militia.” I expand on this argument in my original takedown of Arends.

But I left out one bit of evidence that further undermines the “National Guard only” narrative. The Militia Acts of 1792 were some of the first bills passed by the First Congress. The Militia Act passed on May 8, 1792, defines the militia in a way that supports the broader understanding of the term used by Mason and others during the ratification debates.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes. [Emphasis added]

So, pretty much every able-bodied free man was part of the militia.

You’ll also note that the act actually requires all men between the age of 18 and 45 to have military-grade weapons. This kind of undermines the whole, “the Second Amendment wasn’t so you could have an ‘assault rifles'” argument.

As I said in my original article, the debate over the militia is a bit overplayed. Preservation of state militias made up of the “whole body of people” was certainly part of the impetus that led to the ratification of the Second Amendment, but the right to keep and bear arms wasn’t exclusively attached to militia service. It was part of the broader natural right of self-defense. The text of the Second Amendment makes clear that the right to keep an bear arms applied to everybody. “The right of the people to keep and bear Arms, shall not be infringed.”

Not some of the people.

All of them.

And this was necessary because the militia included virtually all of the free men, as the Militia Act shows.

I don’t generally give a lot of weight to congressional acts, judicial opinions or presidential actions when it comes to determining the original meaning of the Constitution – even to those that occurred immediately after ratification. The federal government quickly went off the rails and began usurping power, and the fact that Congress, a president or a court did something doesn’t definitively prove it was constitutional. Nevertheless, the militia act reaffirms the definition of the militia expressed during the ratification debates by both opponents and supporters of the Constitution. It provides what I would call “supplemental evidence” that further strengthens the case.

]]>Are Recessions Inevitable?http://tenthamendmentcenter.com/2019/08/24/are-recessions-inevitable/
Sat, 24 Aug 2019 19:22:29 +0000http://tenthamendmentcenter.com/?p=28667The only way to end the boom-and-bust cycle and restore peace, prosperity, and liberty is to end the welfare-warfare state, repeal the Sixteenth Amendment, and audit then end the Fed.]]>

Stocks fell last week following news that the yield curve on Treasury notes had inverted. This means that a short-term Treasury note was paying higher interest rates than long-term Treasury note. An inverted yield curve is widely seen as a sign of an impending recession.

Some economic commentators reacted to the inverted yield curve by parroting the Keynesian propaganda that recessions are an inevitable feature of a free-market economy, whose negative effects can only be mitigated by the Federal Reserve. Like much of the conventional economic wisdom, the idea that recessions are caused by the free market and cured by the Federal Reserve is the exact opposite of the truth.

Interest rates are the price of money. Like all prices, they should be set by the market in order to accurately convey information about economic conditions. When the Federal Reserve lowers interest rates, it distorts those signals. This leads investors and businesses to misjudge the true state of the economy, resulting in misallocations of resources.

These misallocations can create an economic boom. However, since the boom is rooted in misperceptions of the true state of the economy, it cannot last. Eventually the Federal Reserve-created bubble bursts, resulting in a recession.

So, recessions are not a feature of the free market. Instead, they are an inevitable result of Congress granting a secretive central bank power to influence the price of money. While monetary policy may be the prime culprit, government tax and regulatory policies also damage the economy. Many regulations, such as the minimum wage and occupational licensing, inflict much harm on the same low-income people that the economic interventionists claim benefit the most from the welfare-regulatory state.

The best thing for Congress and the Federal Reserve to do after the bubble bursts is to let the recession run its course. Recessions are painful but necessary if the economy is going to heal from the damage done by government’s inflate-tax-borrow-spend-and-inflate-some-more policies.

This is not to say that no one would experience economic difficulties in a free market. Businesses and even whole industries would still close because of changing consumer tastes, new competitors offering superior products, or bad business decisions.

There may even be bubbles in a free market as some investors misread fads as permanent changes in consumer preferences. But periods of downturn would be shorter, and most would only affect specific industries rather than the entire economy.

President Trump’s imposition of tariffs (which are a form of taxes on American consumers) has been particularly harmful. The tariff war has not just raised prices on imported consumer goods. It has also cut off markets for export-reliant businesses, such as manufacturers that import materials used to construct their products.

The trade dispute with China may be the event that pushes the US economy into a major recession or even a depression. However, the trade war is not the root cause of the downturn. The next recession, like every recession since 1913, will come stamped “Courtesy of the Federal Reserve.”

The only way to end the boom-and-bust cycle and restore peace, prosperity, and liberty is to end the welfare-warfare state, repeal the Sixteenth Amendment, and audit then end the Fed.

]]>More Spying and Lyinghttp://tenthamendmentcenter.com/2019/08/22/more-spying-and-lying/
Thu, 22 Aug 2019 11:53:43 +0000http://tenthamendmentcenter.com/?p=28676While most of us have been thinking about the end of summer and while the political class frets over the Democratic presidential debates and the aborted visit of two members of Congress to Israel, the Trump administration has quietly moved to extend and make permanent the government’s authority to spy on all persons in America. […]]]>

While most of us have been thinking about the end of summer and while the political class frets over the Democratic presidential debates and the aborted visit of two members of Congress to Israel, the Trump administration has quietly moved to extend and make permanent the government’s authority to spy on all persons in America.

The president, never at a loss for words, must have been asked by the intelligence community he once reviled not to address these matters in public.

These matters include the very means and the very secret court about which he complained loud and long during the Mueller investigation. Now, he wants to be able to unleash permanently on all of us the evils he claims were visited upon him by the Obama-era FBI and by his own FBI. What’s going on?

Here is the backstory.

After the lawlessness of Watergate had been exposed — a president spying on his political adversaries without warrants in the name of national security — Congress enacted in 1978 the Foreign Intelligence Surveillance Act. It prescribed a means for surveillance other than that which the Constitution requires.

The Fourth Amendment to the Constitution — written in the aftermath of British soldiers and agents using general warrants obtained from a secret court in London to spy on whomever in the colonies they wished and to seize whatever they found — was ratified as part of the Bill of Rights to limit the government’s ability to intrude upon the privacy of all persons, thereby prohibiting those procedures used by the British.

Thus, we have the constitutional requirements that no searches and seizures can occur without a warrant issued by a judge based on a showing, under oath, of probable cause of crime. The courts have uniformly characterized electronic surveillance as a search.

I am not addressing eyesight surveillance on a public street. I am addressing electronic surveillance wherever one is when one sends or receives digital communications. FISA is an unconstitutional congressional effort to lower the standards required by the Fourth Amendment from probable cause of crime to probable cause of foreign agency.

Can Congress do that? Can it change a provision of the Constitution? Of course not. If it could, we wouldn’t have a Constitution.

It gets worse.

The court established by FISA — that’s the same court that President Donald Trump asserts authorized spying on him in 2015 and 2016 — has morphed the requirement of probable cause of being a foreign agent to probable cause of communicating with a foreign person as the standard for authorizing surveillance.

What was initially aimed at foreign agents physically present in the United States has secretly become a means to spy on innocent Americans. In Trump’s case, the FISA court used the foreign and irrelevant communications of two part-time campaign workers to justify surveillance on the campaign.

Add to all this the 2002 secret order of President George W. Bush directing the National Security Agency to spy on all in America all the time without warrants — this is what Edward Snowden exposed in 2013 — and one can see what has happened.

What happened?

What happened was the creation of a surveillance state in America that came about by secret court rulings and a once-secret presidential order. As a result of this, part of the government goes to the secret FISA court and obtains search warrants on flimsy and unconstitutional grounds and part of the government bypasses FISA altogether and spies on everyone in America and denies it and lies about it.

Bill Binney, the genius mathematician who once worked for the NSA and now is its harshest critic, has stated many times that, as unconstitutional as FISA is, it is a pretext to NSA spying on all persons in America all the time.

How pervasive is this unlawful spying? According to Binney, the NSA’s 60,000 domestic spies capture the content and the keystrokes of every communication transmitted on fiber optic cables into or out of or wholly within the United States. And they do so 24/7 — without warrants.

Now, back to that quiet late summer proposal by the Trump administration. Some of the statutes that govern who can go to the FISA court and under what circumstances they can go are about to expire. Inexplicably, the president once victimized by FISA wants to make these statutes permanent. And he wants to do so knowing that they are essentially a facade for spying. That would institutionalize the now decades-long federal assault on privacy and evasion of constitutional norms.

It would also place Trump in the same category as his two immediate predecessors, who regularly ordered government agents to violate the Fourth Amendment and then denied they had done so.

Some of my Fox colleagues joke with me that I am shoveling against the tide when it comes to defending the right to privacy. They claim that there is no more privacy. I disagree with them. As long as we still have a Constitution, it must be taken seriously and must mean what it says. And its intentionally stringent requirements for enabling the government to invade privacy remain the law of the land. The president has sworn to uphold the Constitution, not the NSA.

The late Supreme Court Justice George Sutherland once wrote that we cannot pick and choose which parts of the Constitution to follow and which to ignore. If we could, the Constitution would be meaningless.

Did he foresee our present woes when he wrote, “If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned”?

Is that where we are headed?

]]>The Constitution and Establishment of Religionhttp://tenthamendmentcenter.com/2019/08/21/the-constitution-and-establishment-of-religion/
Wed, 21 Aug 2019 11:11:11 +0000http://tenthamendmentcenter.com/?p=28664The real key to the meaning of the Establishment Clause lies in events between 1786 to 1790.]]>

On June 20, 2019, the Supreme Court held that spending public funds to maintain a 40-foot Christian cross on public land doesn’t violate the U.S. Constitution.

The cross is a conspicuous symbol at a busy intersection in Prince George’s County, Maryland. It’s unaccompanied by representations of other faiths. Thus, a humanist (non-religious) organization sued to have it removed, claiming it is an unconstitutional state endorsement of Christianity.

The cross was dedicated in 1925. It memorializes soldiers who died in World War I. The court’s 7–2 decision in its favor was driven partly by the length of time the cross had stood. Even if it had once been primarily a religious symbol, said the court, it is no longer. It’s now a historical monument and memorial to our soldiers. Forcing its removal might spur divisive lawsuits against historical monuments throughout the country.

The First Amendment provides that “Congress shall make no law respecting an establishment of religion. For obvious reasons, lawyers call this phrase the Establishment Clause. In the 20th century, the Supreme Court ruled (for reasons far less obvious) that the Establishment Clause restricts not only Congress but all branches of government—and not only the federal government, but the states as well. The government agency maintaining the cross is a subdivision of the state of Maryland.

Cases involving the Establishment Clause are often difficult to decide. More liberal Supreme Court justices have argued that the clause requires officials to ensure an absolute or nearly absolute “wall of separation” between religion and government. According to this view, the motto “In God We Trust” should be removed from our coins and the words “under God” expunged from the Pledge of Allegiance.

On the other side of the spectrum, some argue that the clause was designed only (1) to prevent the federal government from creating an English-style official church, and (2) to protect state official churches. Some say the clause is violated only if government coerces people into religious conformity, or if the government endorses some religions over others, or supports religion over non-religion.

The confusion arises largely because when the First Amendment was proposed (1789) and ratified (1789–1791), there was little public discussion about what it meant. So in searching for evidence of meaning, writers have gone very far afield. Some look to events as early as 1636, long before the Establishment Clause was written. Others look to the 19th century, long after the clause was adopted.

The real key to the meaning of the Establishment Clause lies in events between 1786 to 1790.

Prior to that time, almost every American state used tax money to fund selected churches and imposed religious tests on officeholders. By 1786, however, a move to “disestablish” state churches was underway. The most famous incident of this kind was James Madison’s successful fight to block a church-funding tax in Virginia.

The following year, the Constitutional Convention met in Philadelphia. George Washington, the convention president, received a letter from Jonas Phillips, a leader of the Philadelphia Jewish community. Phillips complained that the states still treated Jews as second-class citizens. He noted that “the Jews have been true and faithfull … and during the late contest with England they have been foremost in aiding and assisting the states with their lifes [sic] and fortunes, they have supported the cause, have bravely fought and bleed [sic] for Liberty which they can not Enjoy.”

Accordingly, Phillips asked the delegates not to include a religious test in the new Constitution.

And the delegates agreed. They produced a document banning religious tests as requirements for federal office.

But the Constitution did require state and federal officeholders to take an oath or affirmation—a calling of God as a witness. Under the law of the time, this excluded atheists from office.

To become effective, the Constitution had to be approved by popular conventions in the states. At these conventions, many opponents complained about the Constitution’s lack of a religious test. Some opponents wanted to limit federal office to Christians. Others wanted to restrict it to Protestants. Opponents warned that without a religious test, Catholics, Jews, Muslims, pagans, Deists, and even atheists might be elected.

The response of the Constitution’s supporters became the basis of the constitutional bargain. It crystallized the principles by which the federal government was to treat religion.

First, they pointed out that the oath requirement excluded atheists. Second, they stoutly contended that all believers in God were to be treated equally.

For example, in North Carolina, James Iredell (who later served on the U.S. Supreme Court) argued that the oath was a sufficient test of religious faith—and the faith need not be Christian. Similarly, in Massachusetts, Daniel Shute, a Christian minister, told his state’s ratifying convention, “I believe, sir, that there are worthy characters among men of every denomination.”

By the time ratification was complete, the Constitution’s implications for religion were understood: Religious faith was valuable for good government. But government was to treat individual religions equally, as long as they conducted themselves in an orderly manner.

As I have documented in detail, the First Amendment’s Establishment and Free Exercise clauses reflected this understanding: Government might support religion in general, but religions were to be treated impartially.

The central figure in the entire drama was James Madison. He led the fight for disestablishment in Virginia. He was the leading sponsor of the Constitutional Convention. He was a leading drafter of the Constitution itself. And Madison was the primary congressional drafter and sponsor of the First Amendment.

]]>Financial Writer Gets F as Second Amendment Experthttp://tenthamendmentcenter.com/2019/08/19/financial-writer-gets-f-as-second-amendment-expert/
Mon, 19 Aug 2019 10:01:46 +0000http://tenthamendmentcenter.com/?p=28646He should have stuck to markets, economics and finance. His attempt to play constitutional expert gets and F.]]>

With the gun control debate back on the front-burner, a 2016 MarketWatch article asserting that. “The Second Amendment doesn’t give you the right to own a gun” is making the rounds across social media. The article perpetuates a fundamental misunderstanding of the Bill of Rights and demonstrates the danger of basing your constitutional expertise on one Federalist Paper.

Columnist Brett Arends wrote the article. His bio describes him as “an award-winning financial columnist with many years experience writing about markets, economics and personal finance.”

Arends actually gets one thing right. He correctly asserts that the Second Amendment doesn’t give anybody the right to own a gun. Absolutely true, but not for the reason he imagines.

In fact, the Bill of Rights doesn’t give anybody any rights at all. It prohibits the federal government from interfering with rights each individual already has. They should have called the first 10 amendments the “Bill of Restrictions.” It would have eliminated a lot of confusion.

In the case of the Second Amendment, it prohibits the federal government from infringing on the right to keep and bear arms. The language of the amendment assumes “the people” – all of them – already have the natural right to possess firearms. The amendment simply prohibits the federal government from interfering with it.

No exceptions. No excuses.

But Arends asserts the Second Amendment doesn’t “give you” the right to keep and bear arms unless you serve in the militia – or the National Guard.

“It specifically says that right exists in order to maintain ‘a well-regulated militia.’ Even the late conservative Supreme Court Associate Justice Antonin Scalia admitted those words weren’t in there by accident. Oh, and the Constitution doesn’t just say a ‘militia.’ It says a ‘well-regulated’ militia.”

Arends builds his argument on Federalist #29, penned by Alexander Hamilton. This strikes me as an odd basis for an argument about the Second Amendment given it was written 17 months before the Second Amendment was even proposed.

Arends asserts that Hamilton’s musings in Federalist #29 tell us exactly what the founding generation meant by a “well-regulated militia” and “why the Founding Fathers thought we needed one, and why they wanted to protect it from being disarmed by the federal government.” This, he claims, reveals the true meaning of the Second Amendment. It was intended to protect the National Guard.

In fact, the essay doesn’t tell us anything about what the “founding fathers” thought about the militia. It tells us what Alexander Hamilton thought about it. And although he was an influential figure in the founding generation, his views hardly represented any kind of consensus.

Arends cobbles together phrases cherrypicked from various sections of the essay to paint a picture of the militia.

A “well-regulated militia” didn’t mean guys who read Soldier of Fortune magazine running around in the woods with AK-47s and warpaint on their faces. It basically meant what today we call the National Guard. It should be a properly constituted, ordered and drilled (“well-regulated”) military force, organized state by state, explained Hamilton. Each state militia should be a “select corps,” “well-trained” and able to perform all the “operations of an army.” The militia needed “uniformity in … organization and discipline,” wrote Hamilton, so that it could operate like a proper army “in camp and field,” and so that it could gain the “essential … degree of proficiency in military functions.” And although it was organized state by state, it needed to be under the explicit control of the national government. The “well-regulated militia” was under the command of the president. It was “the military arm” of the government.

But Arends strips Hamilton’s words from their context to build his argument. Hamilton wasn’t describing the militia as it was but as he would like it to be. In practice, the militia was not a “select corps” nor a specialized military force. It was made up of every able-bodied man, as George Mason explained during the Virginia ratifying convention.

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor… [Emphasis added]

“[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.”

In Federalist #29, Hamilton was addressing the arguments of people like Mason and A Federal Farmer who believed the Constitution would allow the general government to turn the militia into the “select corps” Ardens describes. Hamilton did not find this problematic. In fact, he thought it would be ideal, and he was trying to sell this idea to the public. Hamilton made this clear in the body of the essay.

“But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse.”

Hamilton then goes on to argue for his vision of a select militia that Ardens parrots. But this was far from a majority view, even among supporters of ratification.

The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. [Emphasis added]

The fear was that the militia clause in the Constitution would give the general government the power to fundamentally change the nature of the militia and even disarm the people. This is exactly why the Second Amendment was proposed. It wasn’t to ensure Hamilton’s vision would come to pass. It was to prevent it. It was to preserve the existing militia system, which depended on “the whole people” maintaining the ability to arm themselves.

Many of the state ratifying conventions insisted on amendments, including a provision to protect the right to keep and bear arms, as a condition of ratification. This was precisely because they did not embrace Hamilton’s vision for the militia and rejected his assurances that it was the best path forward. They wanted to ensure the militia would remain the “whole body of people.” This is why the Second Amendment declares “the right of the people to keep and bear Arms, shall not be infringed.”

Not some people. Not select people who join the “National Guard.” All of the people. Because essentially all of the people were understood to make up the militia.

So Arends is right that maintaining the integrity of the militia was a key reason for the Second Amendment. But he goes off the rails because he doesn’t understand the true nature of the militia. He misses the direct connection between the militia and “the people.”

He should have stuck to markets, economics and finance. His attempt to play constitutional expert gets an F.

]]>Endgame for the Fed?http://tenthamendmentcenter.com/2019/08/17/endgame-for-the-fed/
Sat, 17 Aug 2019 11:34:26 +0000http://tenthamendmentcenter.com/?p=28658The Fed’s action is an example of a popular definition of insanity: doing the same action over and over again and expecting different results.]]>

The Federal Reserve, responding to concerns about the economy and the stock market, and perhaps to criticisms by President Trump, recently changed course on interest rates by cutting its “benchmark” rate from 2.25 percent to two percent. President Trump responded to the cut in already historically-low rates by attacking the Fed for not committing to future rate cuts.

The Fed’s action is an example of a popular definition of insanity: doing the same action over and over again and expecting different results. After the 2008 market meltdown, the Fed launched an unprecedented policy of near-zero interest rates and “quantitative easing.” Both failed to produce real economic growth. The latest rate cut is unlikely to increase growth or avert a major economic crisis.

It is not a coincidence that the Fed’s rate cut came along with Congress passing a two-year budget deal that increases our already 22 trillion dollars national debt and suspends the debt ceiling. The increase in government debt increases the pressure on the Fed to keep interest rates artificially low so the federal government’s interest payments do not increase to unsustainable levels.

President Trump’s tax and regulatory policies have had some positive effects on economic growth and job creation. However, these gains are going to be short-lived because they cannot offset the damage caused by the explosion in deficit spending and the Federal Reserve’s resulting monetization of the debt. President Trump has also endangered the global economy by imposing tariffs on imports from the US’s largest trading partners including China. This has resulted in a trade war that is hurting export-driven industries such as agriculture.

President Trump recently imposed more tariffs on Chinese imports, and China responded to the tariffs by devaluing its currency. The devaluation lowers the price consumers pay for Chinese goods, partly offsetting the effect of the tariffs. The US government responded by labeling China a currency manipulator, a charge dripping with hypocrisy since, thanks to the dollar’s world reserve currency status, the US is history’s greatest currency manipulator. Another irony is that China’s action mirrors President Trump’s continuous calls for the Federal Reserve to lower interest rates.

While no one can predict when or how the next economic crisis will occur, we do know the crisis is coming unless, as seems unlikely, the Fed stops distorting the economy by manipulating interest rates (which are the price of money), Congress cuts spending and debt, and President Trump declares a ceasefire in the trade war.

The Federal Reserve’s rate cut failed to stop a drastic fall in the stock market. This is actually good news as it shows that even Wall Street is losing faith in the Federal Reserve’s ability to manage the unmanageable — a monetary system based solely on fiat currency. The erosion of trust in and respect for the Fed is also shown by the interest in cryptocurrency and the momentum behind two initiatives spearheaded by my Campaign for Liberty — passing the Audit the Fed bill and passing state laws re-legalizing gold and silver as legal tender. There is no doubt we are witnessing the last days of not just the Federal Reserve but the entire welfare-warfare system. Those who know the truth must do all they can to ensure that the crisis results in a return to a constitutional republic, true free markets, sound money, and a foreign policy of peace and free trade.

]]>Today in History: Nixon Slams Shut the “Gold Window”http://tenthamendmentcenter.com/2019/08/15/today-in-history-nixon-slams-shut-the-gold-window/
Thu, 15 Aug 2019 07:16:57 +0000http://tenthamendmentcenter.com/?p=28644Today in history, on August 15, 1971, President Richard Nixon slammed shut the “gold window” and eliminated the last vestige of the gold standard. Nixon ordered Treasury Secretary John Connally to uncouple gold from its fixed $35 price and suspended the ability of foreign banks to directly exchange dollars for gold. During a national television […]]]>

Today in history, on August 15, 1971, President Richard Nixon slammed shut the “gold window” and eliminated the last vestige of the gold standard.

Nixon ordered Treasury Secretary John Connally to uncouple gold from its fixed $35 price and suspended the ability of foreign banks to directly exchange dollars for gold. During a national television address, Nixon promised the action would be temporary in order to “defend the dollar against the speculators,” but this turned out to be a lie. The president’s move permanently and completely severed the dollar from gold and turned it into a pure fiat currency.

Nixon’s order was the end of a path off the gold standard that started during President Franklin D. Roosevelt’s administration. June 5, 1933, marked the beginning of a slow death of the dollar when Congress enacted a joint resolution erasing the right of creditors in the United States to demand payment in gold. The move was the culmination of other actions taken by Roosevelt that year.

In March 1933, the president prohibited banks from paying out or exporting gold, and in April of that same year, Roosevelt signed Executive Order 6102. It was touted as a measure to stop hoarding, but was, in reality, a massive confiscation scheme. The order required private citizens, partnerships, associations and corporations to turn in all but small amounts of gold to the Federal Reserve at an exchange rate of $20.67 per ounce. In 1934, the government’s fixed price for gold was increased to $35 per ounce. This effectively increased the value of gold on the Federal Reserve’s balance sheet by 69 percent.

The reason behind Roosevelt’s executive order and the congressional joint resolution was to remove constraints on inflating the money supply. The Federal Reserve Act required all Federal Reserve notes have 40 percent gold backing. But the Fed was low on gold and up against the limit. By increasing its gold stores through the confiscation of private gold holdings, and declaring a higher exchange rate, the Fed could circulate more notes.

While American citizens were legally prohibited from redeeming dollars for gold, foreign governments maintained that privilege. In the 1960s, the Federal Reserve initiated an inflationary monetary policy to help monetize massive government spending for the Vietnam War and Pres. Lyndon Johnson’s “Great Society.” With the dollar losing value due to these inflationary policies, foreign governments began to redeem dollars for gold.

This is exactly how a gold standard is supposed to work. It puts limits on the amount the money supply can grow and constrains the government’s ability to spend. If the government “prints” too much money, other countries will begin to redeem the devaluing currency for gold. This is what was happening in the 1960s. As gold flowed out of the U.S. Treasury, concern grew that the country’s gold holdings could be completely depleted.

Instead of insisting on fiscal and monetary discipline, Nixon simply severed the dollar from its last ties to gold, allowing the central bank to inflate the money supply without restraint.

When he announced the closing of the gold window, Nixon said, “Let me lay to rest the bugaboo of what is called devaluation,” and promised, “your dollar will be worth just as much as it is today.”

This was also a lie.

According to the Consumer Price Index data released by the Bureau Labor of Statistics, the dollar has lost more than 80 percent of its value since Nixon’s fateful decision. Meanwhile, the dollar value of gold has gone from $35 an ounce to about $1,500.

By every measure—including stagnating wages and rising costs—things have been going downhill for the American middle class since the early 1970s. August 15, 1971, to be exact. This is the date President Nixon killed the last remnants of the gold standard. Since then, the dollar has been a pure fiat currency. This allows the Fed to print as many dollars as it pleases. And—without the discipline imposed by some form of a gold standard—it does precisely that. The U.S money supply has exploded 2,106 percent higher since 1971. The rejection of sound money is the primary reason inflation has eaten up wage growth since the early 1970s—and the primary reason the cost of living has exploded.”

Practically speaking, this means that if you stashed an ounce of gold worth $35 alongside thirty-five one-dollar bills under your bed in 1971. Today, you would be sitting on gold that would buy you an expensive tailored suit. The $35 in cash couldn’t get you a pack of fancy boxer shorts.

In a 2017 article, financial guru Jim Grant explained the importance of a gold standard and how it restrains the power of government.

What was the gold standard, exactly — this thing that the professors dismiss so airily today? A self-respecting member of the community of gold-standard nations defined its money as a weight of bullion. It allowed gold to enter and leave the country freely. It exchanged bank notes to gold, and vice versa, at a fixed and inviolable rate. The people, not the authorities, decided which form of money was best.

“The gold standard was a hard task master, all right. You couldn’t devalue your way out of trouble. You couldn’t run up a big domestic budget deficit. The central bank of a gold-standard country (if there was a central bank) was charged with preserving the convertibility of the currency and, in a pinch, serving as lender of last resort to needy commercial banks. Growth, employment and price stability took their own course. And if, in a financial panic or a business-cycle downturn, gold fled the country, it was the duty of the central bank to establish a rate of interest that called the metal home. In the throes of a crisis, interest rates would likely go up, not down.”

Grant wrote that the reason the gold standard is so often demeaned by modern economists and politicians is because, “The modern sensibility quakes at the rigor of such a system.”

In effect, the gold standard replaced by another standard. Grant calls it the “Ph.D. standard,” a system run by politicians and central planners.

That system features monetary oversight by former university economics faculty — the Ph.D. standard, let’s call it. The ex-professors buy bonds with money they whistle into existence (“quantitative easing”), tinker with interest rates, and give speeches about their intentions to buy bonds and tinker with interest rates (“forward guidance”).

This is exactly what politicians like Nixon, Ford, Carter, Reagan, Bush I, Clinton, Bush II, Obama and Trump wanted — the ability to spend without restraint and grow government with no limits. The result: massive national debt and devalued currency that buys the average person less and less every year.

Nixon yearned to be free of this restraint so he could spend dollars more freely, and not have to worry about their value in gold. Nixon’s move was, in short, the final and total politicization on money itself, and, as Grant notes, ‘The Ph.D. standard is … a political institution. It is the financial counterpart to the philosophy of statism.’

]]>Detroit Mayor Misleads Public About Facial Recognition as Debate Over Spy-Program Rageshttp://tenthamendmentcenter.com/2019/08/13/detroit-mayor-misleads-public-about-facial-recognition-as-debate-over-spy-program-rages/
Tue, 13 Aug 2019 18:50:16 +0000http://tenthamendmentcenter.com/?p=28638Revelations that the Detroit Police Department has implemented a facial recognition system with no public input or approval has sparked controversy in the Motor City. The mayor and other city officials have tried to cover up the extent of the program. The debate in Detroit provides a look into the broader implications of the growing […]]]>

Revelations that the Detroit Police Department has implemented a facial recognition system with no public input or approval has sparked controversy in the Motor City. The mayor and other city officials have tried to cover up the extent of the program.

The debate in Detroit provides a look into the broader implications of the growing use of facial recognition across the United States and the ever-expanding surveillance state.

Politicians can be pretty clever when it comes to the way they use words. They can say one thing and mean the exact opposite. Detroit Mayor Mike Duggan did just that as the debate over facial recognition technology heated up. The mayor implied that the Detroit Police Department isn’t using facial recognition technology. But if you parse his words carefully, you’ll find that’s not what he said at all.

The city spent more than $1 million on facial recognition technology back in 2017. But Duggan sent out what the Detroit Free Press called “a definitive sounding tweet” that seemed to assert that the police department was not and would not be using the technology.

“Let me be clear: there will be no facial recognition software used with live stream video by the (Detroit Police Department). That’s not what we’re doing, and that’s not ever what was intended.”

As the Detroit Free Press interpreted the tweet and a subsequent video, the mayor was attempting to “shut down any notion that the department was using facial recognition software, a technology which has been widely criticized for issues ranging from privacy overreach to high-error rates, specifically when used on black and brown individuals.”

Duggan was clearly trying to muddy the water and hoping to deflect criticism from a wildly controversial surveillance program. After all, why would a city spend $1 million on technology it wasn’t going to use?

It wouldn’t.

And it is using the technology.

So, was Duggan lying?

That remains unclear, but if you carefully read what he said, you will realize they he never claimed the police department wasn’t using facial recognition at all. He just said it wasn’t using it on “live stream video.”

In other words, police aren’t running facial recognition in real-time. But they are using the technology on still images plucked from reams of footage collected by cameras all around the city. As Urban Institute’s Justice Policy Center senior policy analyst Daniel Lawrence told the Detriot Free Press, this is a difference without any real distinction.

“In all my experience with facial recognition, the way the process and programming works is that it takes a still image from the video. I’m not knowledgeable of any facial recognition software that’s taking real video. It’s taking a still from a video.”

Detroit has developed an extensive surveillance system known as Project Green Light utilizing a network of thousands of government and private cameras throughout the city. The cameras are installed at schools, parks, apartment buildings, immigration centers, gas stations, churches, hotels, fast-food restaurants, and even in places such as addiction treatment centers and abortion clinics.

The program was implemented in 2016 and was generally popular due to the promise that it would deter and help solve crime. As the New York Times pointed out, the system is anything but covert. A flashing green light marks the location of every camera linked into a network that feeds directly into the Detroit Police Department’s downtown headquarters.

Like virtually every government program, the surveillance network has expanded over time. Now, the revelation that police are using facial recognition with the camera system has sparked controversy. According to the NYT, the program matches images captured by the cameras against driver’s license photos and police mug shots held in a statewide police database. The DPD purchased its facial recognition system and put it into operation without approval from the elected Board of Police Commissioners that is supposed to provide oversight and accountability for the department. According to the Metro Times, the commission has evolved into “a virtual rubber stamp for Chief James Craig and Mayor Mike Duggan, who appoints some of the members and helped campaign for the commission chairman, Willie Bell.”

Beyond the broader privacy implications, the use of facial recognition technology is problematic due to its proven lack of accuracy in identifying people with dark skin pigmentation. “We live in a major black city. That’s a problem,” a software engineer told the Times.

As the New York Times noted, “There was also concern that the photograph of anyone who gets a Michigan state ID or driver’s license is searchable by state and local law enforcement agencies, and the F.B.I., likely without their knowledge.”

The Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.

“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”

George Orwell’s Big Brother would have drooled over the all-encompassing surveillance system quietly under construction in the United States. Facial recognition technology linked to federal, state and local databases can track your every move just by pointing a camera at your face. It effectively turns each of us into a suspect standing in a perpetual lineup.

In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear, including ALPRs, stingray devices and drones. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

In other words, facial recognition surveillance in cities like Detroit has national implications. And similar scenarios are playing out in cities across the country.

]]>The President and Withdrawal from Treatieshttp://tenthamendmentcenter.com/2019/08/12/the-president-and-withdrawal-from-treaties/
Mon, 12 Aug 2019 14:00:35 +0000http://tenthamendmentcenter.com/?p=28635Last week the United States withdrew from the Intermediate Range Nuclear Forces (INF) Agreement with Russia, pursuant to the Treaty’s six-month notification period for withdrawal (the notification was sent in February). The President directed the notification and withdrawal on his own independent constitutional authority. I have not seen any substantial constitutional objection to this action — which […]]]>

Last week the United States withdrew from the Intermediate Range Nuclear Forces (INF) Agreement with Russia, pursuant to the Treaty’s six-month notification period for withdrawal (the notification was sent in February). The President directed the notification and withdrawal on his own independent constitutional authority.

I have not seen any substantial constitutional objection to this action — which is a little surprising given widespread constitutional objections to various presidential actions and the fact that the Constitution says nothing directly about the power to withdraw from treaties. Perhaps it’s assumed that the President has this power as a result of longstanding practice (as discussed by Curtis Bradley here). But that does not resolve the Constitution’s original allocation of the power.

One might say that treaties can be terminated by the President only with the Senate’s consent — the same process by which treaties are made. But that seems unlikely: appointments are (generally) made by the President with the Senate’s consent, but it’s not thought that the Senate must consent to removals. (Some people made that argument in 1789 but they were small minority). And if the power to appoint does not imply the power to remove, it seems unlikely that the power to make treaties implies the power to unmake them.

Or one might say that Congress has the power to withdraw from treaties. To an extent, this is surely true. If a treaty interferes with Congress’ exercise of an enumerated power, Congress would seem to have the necessary and proper power to remove the obstacle of the treaty. Indeed, pursuant to what we now call the “later-in-time” rule, Congress can simply violate a treaty by passing inconsistent legislation.

But this only takes us so far. First, that Congress has this power does not show that the President lacks it. Treaty withdrawal could be a concurrent power. Second, and more importantly, this reasoning only extends to treaties that are within Congress’ enumerated powers. (Some people argue that treaties cannot reach subjects beyond Congress’ enumerated powers, but I think the textualist and originalist evidence is firmly against that view, as discussed here). Assuming treaties can reach beyond Congress’ enumerated powers, there seems little basis to say that Congress can withdraw from them.

That brings us back to the President. But the President’s specific textual powers do not seem helpful either. The power to make treaties with the consent of the Senate surely does not imply the power to withdraw from treaties without the Senate’s consent. The power to receive ambassadors also seems unhelpful, both because treaty withdrawals are not necessarily communicated through ambassadors and because this clause seems an odd place to hide the withdrawal power.

Perhaps treaty withdrawal is a form of law execution (treaties are the supreme law of the land, by Article VI, and withdrawing from a treaty in accordance with its terms might seem like a form of executing it). So maybe the power comes from the take care clause. But I think not. First, I don’t think that clause gives any power at all: it describes a duty, not a power. Second, it’s a bit awkward to say that one executes a treaty by deciding to no longer execute it. To be clear, I don’t think the take care clause prohibits the President from withdrawing from a treaty (as long as he doesn’t violate it), but I also don’t think it empowers him to do so.

The solution to this puzzle, in my view, is the executive power vested in the President by Article II, Section 1. As I’ve argued at length (e.g., here), this clause (a) is a substantive grant of power and (b) contains, in addition to the power to execute the laws, a variety of foreign affairs powers not otherwise allocated in the Constitution. Generally speaking, this executive foreign affairs power amounts to the power to manage diplomatic interactions with foreign countries. And managing relations with treaty partners, including withdrawing from treaties where appropriate, seems to fit well within this power.

So presidential withdrawals from treaties do not worry me as a constitutional matter. (Presidential violations of treaties are another matter, but that is not today’s topic). But they are a substantial challenge for scholars and commentators who do not accept the Article II, Section 1 executive power in foreign affairs. It seems highly unlikely that the Constitution provides no way to withdraw from treaties (especially treaties that specifically contemplate withdrawal by notification). If Article II, Section 1 is not the source of this power, what is?

NOTE:This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

]]>Study Shows Police Lying About Asset Forfeiturehttp://tenthamendmentcenter.com/2019/08/10/study-shows-police-lying-about-asset-forfeiture/
Sat, 10 Aug 2019 11:13:28 +0000http://tenthamendmentcenter.com/?p=28536Law enforcement lobbyists always oppose asset forfeiture reform, generally relying on the claim that seizing people’s stuff serves as a valuable crime-fighting tool. But a recent study conducted by a Seattle University economist for the Institute of Justice casts serious doubts on this claim, and many others touted by supporters of asset forfeiture. The study […]]]>

Law enforcement lobbyists always oppose asset forfeiture reform, generally relying on the claim that seizing people’s stuff serves as a valuable crime-fighting tool. But a recent study conducted by a Seattle University economist for the Institute of Justice casts serious doubts on this claim, and many others touted by supporters of asset forfeiture.

The study found that increased forfeiture proceeds do not translate to an increase in the number of crimes solved despite the claim that they give law enforcement more crime-fighting resources. Nor do forfeiture proceeds correlate to lower the levels of drug use in the community. Furthermore, the study supports the belief that asset forfeiture leads to “policing for profit.” It revealed that forfeitures tend to increase when local economies struggle, suggesting law enforcement agencies use forfeiture money to plug budget holes.

Dr. Brian Kelly authored the study.

“These results add to a growing body of evidence suggesting that forfeiture’s value in crime fighting is exaggerated and that police do use forfeiture to raise revenue,” he said. “Given this evidence and the serious civil liberties concerns raised by forfeiture, forfeiture proponents should bear the burden of proof when opposing reforms that would keep police focused on fighting crime, not raising revenue.”

The study used local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Department of Justice’s equitable sharing program.

The scope of the federal asset forfeiture program is staggering. Between 2001 and 2017, the feds took in close to $40 billion, and the funds’ net assets have surpassed $4 billion in every year since 2013. Between 2000 and 2016, the federal government made more than 660,000 disbursements to state and local law enforcement agencies totaling over $6.8 billion.

Cops claim asset forfeiture proceeds make them more effective crime fighters. They insist additional resources allow them to purchase additional gear and fund special programs. But the study suggested that “forfeiture does not help police solve more crime. The results of these analyses were statistically insignificant at conventional levels, suggesting additional forfeiture revenue does not translate into more crimes solved.” And it doesn’t appear to lower levels of drug use either – one of the oft-stated claims made by police lobbyists supporting forfeiture.

For none of these illicit drug use measures did I find increases in equitable sharing proceeds led to subsequent reductions in use. In short, to the extent forfeiture advocates hope increasing enforcement through forfeiture will reduce drug use, this does not appear to be happening.”

While federal asset forfeiture doesn’t fight crime, it does incentivize state and local police in states with more stringent asset forfeiture procedures to circumvent their state laws and collect funds through the federal program.

“Equitable sharing may also circumvent democratic controls in potentially allowing state and local law enforcement to evade state laws that make forfeiture less lucrative or more difficult. A number of states allow agencies to keep less than 80 percent of forfeiture proceeds or offer more robust protections for property owners; a few have even abolished civil forfeiture entirely. Where a state does not expressly restrict equitable sharing participation, state and local agencies may seize on this loophole.”

A 2018 study bears this out. It found that “on average, agencies in states with the lowest financial incentives and the greatest protections for property owners took in more than twice as much equitable sharing money per agency as agencies in states with the highest incentives and poorest protections.”

This is why it is imperative that state asset forfeiture reforms include provisions to withdraw the state from the federal equitable sharing program.

In a nutshell, the study shows police arguments for forfeiture are basically all lies.

“Congress should abolish equitable sharing, and in the meantime, states should opt out of the program. And lawmakers should eliminate the financial incentives in both state and federal forfeiture laws that encourage the pursuit of revenue over the pursuit of justice.” [Emphasis added]

]]>Draconian Laws, Precrime & the Surveillance Statehttp://tenthamendmentcenter.com/2019/08/08/draconian-laws-precrime-the-surveillance-state/
Thu, 08 Aug 2019 21:24:11 +0000http://tenthamendmentcenter.com/?p=28640We’ve been down this road many times before. If the government is consistent about any one thing, it is this: it has an unnerving tendency to exploit crises and use them as opportunities for power grabs under the guise of national security. As David C. Unger, a foreign affairs editorial writer for the New York Times, […]]]>

We’ve been down this road many times before.

If the government is consistent about any one thing, it is this: it has an unnerving tendency to exploit crises and use them as opportunities for power grabs under the guise of national security.

As David C. Unger, a foreign affairs editorial writer for the New York Times, explains, “Life, liberty, and the pursuit of happiness have given way to permanent crisis management: to policing the planet and fighting preventative wars of ideological containment, usually on terrain chosen by, and favorable to, our enemies. Limited government and constitutional accountability have been shouldered aside by the kind of imperial presidency our constitutional system was explicitly designed to prevent.”

Cue the Emergency State, the government’s Machiavellian version of crisis management that justifies all manner of government tyranny in the so-called name of national security.

These tactics have been employed before, here in the U.S. and elsewhere, by other totalitarian regimes, with devastating results.

It’s a simple enough formula: first, you create fear, then you capitalize on it by seizing power.

For instance, in his remarks on the mass shootings in Texas and Ohio, President Trump promised to give the FBI “whatever they need” to investigate and disrupt hate crimes and domestic terrorism.

Let that sink in a moment.

In a post-9/11 America, Trump’s promise bodes ill for whatever remnants of freedom we have left. With that promise, flippantly delivered without any apparent thought for the Constitution’s prohibitions on such overreach, the president has given the FBI the green light to violate Americans’ civil liberties in every which way.

So what does the government’s carefully calibrated response to this current crisis mean for freedom as we know it? Compliance and control.

For starters, consider Trump’s embrace of red flag gun laws, which allow the police to remove guns from people “suspected” of being threats, will only add to the government’s power.

As The Washington Post reports, these laws “allow a family member, roommate, beau, law enforcement officer or any type of medical professional to file a petition [with a court] asking that a person’s home be temporarily cleared of firearms. It doesn’t require a mental-health diagnosis or an arrest.”

Be warned: these laws, growing in popularity as a legislative means by which to seize guns from individuals viewed as a danger to themselves or others, are yet another Trojan Horse, a stealth maneuver by the police state to gain greater power over an unsuspecting and largely gullible populace.

Seventeen states, plus the District of Columbia, now have red flag laws on their books. That number is growing.

In the midst of what feels like an epidemic of mass shootings, these gun confiscation laws—extreme risk protection order (ERPO) laws—may appease the fears of those who believe that fewer guns in the hands of the general populace will make our society safer.

Therein lies the danger of these red flag laws, specifically, and pre-crime laws such as these generally, especially when you put the power to determine who is a potential danger in the hands of government agencies, the courts and the police.

After all, this is the same government that uses the words “anti-government,” “extremist” and “terrorist” interchangeably.

This is the same government that, in 2009, issued a series of Department of Homeland Security reports on Rightwing and Leftwing “Extremism,” which broadly define extremists as individuals, military veterans and groups “that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely.”

This is the same government that, as first reported by the Wall Street Journal, tracks military veterans returning from Iraq and Afghanistan and characterizes them as extremists and potential domestic terrorist threats because they may be “disgruntled, disillusioned or suffering from the psychological effects of war.”

This is the same government that keeps re-upping the National Defense Authorization Act (NDAA), which allows the military to detain and imprison American citizens with no access to friends, family or the courts if the government believes them to be a threat.

This is the same government that has a growing list—shared with fusion centers and law enforcement agencies—of ideologies, behaviors, affiliations and other characteristics that could flag someone as suspicious and result in their being labeled potential enemies of the state.

For instance, if you believe in and exercise your rights under the Constitution (namely, your right to speak freely, worship freely, associate with like-minded individuals who share your political views, criticize the government, own a weapon, demand a warrant before being questioned or searched, or any other activity viewed as potentially anti-government, racist, bigoted, anarchic or sovereign), you could be at the top of the government’s terrorism watch list.

In other words, if you dare to subscribe to any views that are contrary to the government’s, you may well be suspected of being a domestic terrorist and treated accordingly.

Where many Americans go wrong is in assuming that you have to be doing something illegal or challenging the government’s authority in order to be flagged as a suspicious character, labeled an enemy of the state and locked up like a dangerous criminal.

That is not the case.

All you really need to do is question government authority.

With the help of artificial intelligence, a growing arsenal of high-tech software, hardware and techniques, government propaganda urging Americans to turn into spies and snitches, as well as social media and behavior sensing software, government agents are spinning a sticky spider-web of threat assessments, behavioral sensing warnings, flagged “words,” and “suspicious” activity reports aimed at snaring potential enemies of the state.

It’s the American police state’s take on the dystopian terrors foreshadowed by George Orwell, Aldous Huxley and Phillip K. Dick all rolled up into one oppressive pre-crime and pre-thought crime package.

What’s more, the technocrats who run the surveillance state don’t even have to break a sweat while monitoring what you say, what you read, what you write, where you go, how much you spend, whom you support, and with whom you communicate. Computers guided by artificial intelligence now do the tedious work of trolling social media, the internet, text messages and phone calls for potentially anti-government remarks—all of which is carefully recorded, documented, and stored to be used against you someday at a time and place of the government’s choosing.

This is the world that science fiction author Philip K. Dick envisioned for Minority Report in which the government is all-seeing, all-knowing and all-powerful, and if you dare to step out of line, dark-clad police SWAT teams will crack a few skulls in order to bring the populace under control.

In Dick’s dystopian police state, the police combine widespread surveillance, behavior prediction technologies, data mining and precognitive technology to capture would-be criminals before they can do any damage: precrime.

In the film Minority Report, the technology that John Anderton, Chief of the Department of Pre-Crime in Washington, DC, relies on for his predictive policing proves to be fallible, identifying him as the next would-be criminal and targeting him for preemptive measures. Consequently, Anderton finds himself not only attempting to prove his innocence but forced to take drastic measures in order to avoid capture in a surveillance state that uses biometric data and sophisticated computer networks to track its citizens.

With every passing day, the American police state moves that much closer to mirroring the fictional pre-crime prevention world of Minority Report.

In other words, the burden of proof is reversed: you are guilty before you are given any chance to prove you are innocent.

Dig beneath the surface of this kind of surveillance/police state, however, and you will find that the real purpose of pre-crime is not safety but control.

Red flag gun laws merely push us that much closer towards a suspect society where everyone is potentially guilty of some crime or another and must be preemptively rendered harmless.

Again, where many Americans go wrong is in naively assuming that you have to be doing something illegal or harmful in order to be flagged and targeted for some form of intervention or detention.

In fact, U.S. police agencies have been working to identify and manage potential extremist “threats,” violent or otherwise, before they can become actual threats for some time now.

In much the same way that the USA Patriot Act was used as a front to advance the surveillance state, allowing the government to establish a far-reaching domestic spying program that turned every American citizen into a criminal suspect, the government’s anti-extremism program renders otherwise lawful, nonviolent activities as potentially extremist.

Be warned: once you get on such a government watch list—whether it’s a terrorist watch list, a mental health watch list, a dissident watch list, or a red flag gun watch list—there’s no clear-cut way to get off, whether or not you should actually be on there.

You will be tracked wherever you go.

You will be flagged as a potential threat and dealt with accordingly.

This is pre-crime on an ideological scale and it’s been a long time coming.

The government has been building its pre-crime, surveillance network in concert with fusion centers (of which there are 78 nationwide, with partners in the corporate sector and globally), data collection agencies, behavioral scientists, corporations, social media, and community organizers and by relying on cutting-edge technology for surveillance, facial recognition, predictive policing, biometrics, and behavioral epigenetics (in which life experiences alter one’s genetic makeup).

If you’re not scared yet, you should be.

Connect the dots.

Start with the powers amassed by the government under the USA Patriot Act, note the government’s ever-broadening definition of what it considers to be an “extremist,” then add in the government’s detention powers under NDAA, the National Security Agency’s far-reaching surveillance networks, and fusion centers that collect and share surveillance data between local, state and federal police agencies.

To that, add tens of thousands of armed, surveillance drones and balloons that are beginning to blanket American skies, facial recognition technology that will identify and track you wherever you go and whatever you do. And then to complete the picture, toss in the real-time crime centers being deployed in cities across the country, which will be attempting to “predict” crimes and identify so-called criminals before they happen based on widespread surveillance, complex mathematical algorithms and prognostication programs.

Hopefully you’re starting to understand how easy we’ve made it for the government to identify, label, target, defuse and detain anyone it views as a potential threat for a variety of reasons that run the gamut from mental illness to having a military background to challenging its authority to just being on the government’s list of persona non grata.

]]>Congress Spending Surge is National Suicidehttp://tenthamendmentcenter.com/2019/08/07/congress-spending-surge-is-national-suicide/
Wed, 07 Aug 2019 11:45:38 +0000http://tenthamendmentcenter.com/?p=28632While we cannot say precisely when the economic crash will occur, we do know that it is coming. And last week Congress pounded down on the accelerator.]]>

With a national debt approaching $23 trillion and a trillion dollar deficit for this year alone, Congress last week decided to double down on suicidal spending, passing a two year budget that has the United States careening toward catastrophe. While we cannot say precisely when the economic crash will occur, we do know that it is coming. And last week Congress pounded down on the accelerator.

We are told that the US economy is experiencing unprecedented growth, while at the same time the Fed is behaving as it does when we are in recession by cutting rates…and dodging insults from the President because it’s not cutting fast enough. This is not economic policy – it’s schizophrenia!

But that’s only the beginning.

Take what they call “national defense” spending. This is the misnomer they use to try and convince us that pumping trillions into the military-industrial complex will make us safe and free. Nothing could be further from the truth: probably ninety percent of the “defense” budget is aggressive militarism and welfare for the rich.

Under this budget deal the military budget would increase to nearly $1.4 trillion for two years. Of course that’s only a fraction of real military spending, which is, all told, well over one trillion dollars per year.

What do we get for this money? Are we safer? Not at all. We are more vulnerable than ever. We spend billions fighting “terrorism” in Africa while terrorism has actually increased since the creation of the US Africa Command – “AFRICOM” – in 2007. Meanwhile we continue to spend to maintain our illegal military occupation of a large section of Syria – which benefits terrorist groups seeking to overthrow Assad.

We’re sending thousands more troops to the Middle East including basing US troops in Saudi Arabia for the first time since 2003. Back then, even neocon Paul Wolfowitz praised our departure from Saudi Arabia because, as he rightly stated, US troops on Saudi soil was a great recruiting tool for al-Qaeda.

Now we’ve pulled out of the Intermediate-range Nuclear Forces (INF) treaty so that we can deploy once-forbidden missiles on China’s front door. A new arms race with China will mean a new boon for our new Defense Secretary’s former colleagues at Raytheon!

Senator Rand Paul (R-KY) pronounced the Tea Party dead with the adoption of this budget. He’s right of course, but only when it comes to Congress. Given the opportunity, I still believe a good part of the American people will vote for candidates who promise to rein in the national credit card. President Trump himself ran on a platform of ending deficit spending and even paying off the national debt!

So the Tea Party may be dead in Washington, but I am not convinced it was ever really alive in Washington. With a few exceptions, most politicians saw the Tea Party as just the flavor of the month. Spending is what keeps Washington alive and keeps the DC suburbs rich. They’re not about to cut back on their own.

But the spending will end. The trillions thrown down the drain on militarism will end. The only question is whether it will end when we are completely bankrupt and at the mercy of countries we’ve kicked around for decades or whether Americans will demand an end to bipartisan addiction to war and spending in Washington!

]]>Report: Trump Ramps Up Enforcement of Federal Gun Laws for Second Straight Yearhttp://tenthamendmentcenter.com/2019/08/05/report-trump-ramps-up-enforcement-of-federal-second-straight-year/
Mon, 05 Aug 2019 10:32:25 +0000http://tenthamendmentcenter.com/?p=28629The ATF ramped up enforcement of unconstitutional federal gun laws again last year according to the latest report released by the agency. This follows on the heels of increased enforcement actions during President Trump’s first year in office. Last year, the ATF investigated 35,839 firearms cases. That compares to 2017 when the agency initiated 35,302 […]]]>

The ATF ramped up enforcement of unconstitutional federal gun laws again last year according to the latest report released by the agency. This follows on the heels of increased enforcement actions during President Trump’s first year in office.

This modest jump in firearms investigations comes after the ATF significantly increased the number of cases it pursued during President Donald Trump’s first year in office. In 2016, the final year of the Obama administration, the ATF investigated 31,853 firearms cases. During Trump’s first year, the agency investigated 35,302. That was 3,349 more firearms cases than under Obama, a 10.81 percent increase. (See Footnote 1)

We also saw increases in other enforcement categories last year. There were 1,100 more cases recommended for prosecution and 493 more indictments. The only drop came in the number of convictions, which fell by 583 between 2017 and 2018. (See Footnote 2)

It appears the ATF tried harder in 2018 but wasn’t quite as effective as 2017.

Cases recommended for prosecution:

2018 – 10,691

2017 – 9,591

2016 – 8,805

2015 – 7,516

2014 – 7,577

Indicted cases

2018 – 7,630

2017 – 7,137

2016 – 6,357

2015 – 5,503

2014 – 5,310

Convicted cases

2018 – 5,485

2017 – 6,068

2016 – 5,517

2015 – 4,031

2014 – 4,482

The ATF also investigates arson, cases involving explosives, and alcohol and tobacco cases, but these make up a small percentage of the total. Under Trump, 92 percent of the cases investigated by the ATF have involved firearms. It was slightly less under Obama – 90 percent.

ATF enforcement of federal gun laws under Trump in year one increased at roughly the same trajectory as it did during the last three years of Obama’s second term. And while the increase wasn’t as dramatic, the Trump ATF increased enforcement again last year. In other words, the NRA-backed, GOP protector of the Second Amendment has been no better than the Democratic Party gun-grabber.

And Trump did something even Obama didn’t do. He instituted new federal gun control with the implementation of a “bump-stock” ban. He has also suggested he might impose a similar ban on firearm “silencers.”

Some might argue it would have been worse if Hillary Clinton had won. Perhaps. But if you support the Second Amendment, isn’t it a problem that the president who’s supposed to be the good guy continues to ratchet up enforcement of existing unconstitutional federal laws?

A true supporter of the right to keep and bear arms would do better.

And make no mistake; all federal gun control laws are unconstitutional.

Even among the strongest supporters of “gun rights,” most hold the view that the Second Amendment allows for “reasonable” federal regulation of firearms. But as originally understood, the Second Amendment includes no such exceptions. Constitutionally speaking, the federal government should not regulate the manufacture or private ownership of firearms.

At all.

There wasn’t an asterisk after “shall not be infringed.” No terms and conditions apply.

The bottom line is we can’t trust Republicans in Washington D.C. to uphold the Second Amendment. Unfortunately, it appears we have the same problem with Republicans in state legislatures as well.

When Barack Obama was president, Republicans in state legislatures introduced dozens of bills to nullify federal gun control by refusing to help with federal enforcement. After Trump won the White House, those efforts virtually stopped, even though not one single federal gun control law has been repealed.

During the last two years of the Obama administration, there were more than 50 bills directly pushing back against federal gun control introduced in 22 states. During the three state legislative sessions since the Trump administration took over, the number of bills dropped by more than half and the number of states nearly did too.

Not only that, the bills that were filed after Trump took office didn’t go anywhere. Governors signed five bills into law directly taking on federal gun control during the last two Obama years. Since then – zero.

If you didn’t know better, you’d think there weren’t any more threats the right to keep and bear arms. And yet the federal gun control acts of 1934, 1968 and 1986, along with other various laws violating the Second Amendment, remain on the books. And they’re still being enforced by the feds just as aggressively as they were when Obama was president.

By and large, Republicans use the Second Amendment as a campaign prop, but they do very little to actually stop the federal government from infringing on your right to keep and bear arms. They barely hold the line on new gun control and they don’t do anything to challenge the unconstitutional laws already on the books.

UPDATE 08-05-19 3:30pm Pacific time: In a public appearance this morning, the President reminded us about his gun control enforcement, pointing out not only the bump stock ban, but the fact that his administration has conducted more enforcement actions than anyone in history: “At my direction, the DOJ banned bump stocks. Last year we prosecuted a record number of firearms offenses.”

Footnote 1

All enforcement statistics were taken from the following ATF Fact Sheets

These numbers include all cases investigated by the ATF, including arson, explosives, and alcohol and tobacco. In 2017 and 2018, 92 percent of the ATF cases investigated involved firearms. In 2016, 90 percent of the cases were firearms-related.

]]>How the Founders told us the Constitution would restrict federal powerhttp://tenthamendmentcenter.com/2019/08/03/how-the-founders-told-us-the-constitution-would-restrict-federal-power/
Sat, 03 Aug 2019 12:55:48 +0000http://tenthamendmentcenter.com/?p=28627Everyone who studies the Constitution knows it grants to agencies of the federal government and a few other entities only enumerated (listed) powers. Sometimes, though, it is not obvious whether a particular function is included in an enumerated power. For example, is authority to inspect goods within Congress’s authority to “regulate Commerce?” When the American […]]]>

Everyone who studies the Constitution knows it grants to agencies of the federal government and a few other entities only enumerated (listed) powers. Sometimes, though, it is not obvious whether a particular function is included in an enumerated power. For example, is authority to inspect goods within Congress’s authority to “regulate Commerce?”

When the American people were considering whether to ratify the Constitution, the principal argument of its opponents (Antifederalists) was that the Constitution would grant too much power to the central government. The Constitution’s advocates (Federalists) countered that the central government’s authority would be strictly limited.

To reinforce their position, the Federalists promised a bill of rights that would remove some subjects—such as religion—entirely from federal jurisdiction. They also publicized lists of functions that, if the Constitution were adopted, would remain solely within the spheres of the private sector and of state governments. It is doubtful whether the Constitution would have been ratified if the Federalists had not provided the country with those representations.

History well remembers the Bill of Rights. But despite their importance, the lists of enumerated non-federal functions were long forgotten. In 2003, however, I researched and wrote a scholarly article, The Enumerated Powers of States.

It re-published the Federalists’ list of powers exclusively within the private and state sphere. It also showed how their representations were at the core of the constitutional deal. Under the terms of that deal, the federal government was to have little or no authority over many subjects onto which it has since intruded: manufactures, real estate, the criminal law, civil jurisprudence, health care, most infrastructure projects, and many others.

Of course, the “prestige” law journals refused to seriously consider my article. But a newer publication, Nevada Law Journal, agreed to publish it. The Enumerated Powers of States has become one of my all-time most-cited writings.

Last summer, I published a supplemental survey in the Federalist Society Review. It included information not in the original article. Now the same publication has released a third essay in which I discuss still more founding-era evidence—this evidence only newly brought to light. This material reinforces the conclusion that the Founders understood the Constitution to place outside federal control many functions the central government has appropriated.

Liberal law professors have long floated innovative—and rather far-fetched—claims about the Constitution designed to show that the document somehow authorizes the welfare and regulatory state. The latest essay discusses two of the most recent assertions of this kind. My essay shows that both the Constitution’s text and the latest evidence flatly contradict these assertions. You can find my latest article here.

]]>Smoke and Mirrors: The “Greatest Economy” is Built on Spending and Debthttp://tenthamendmentcenter.com/2019/08/01/smoke-and-mirrors-the-greatest-economy-is-built-on-spending-and-debt/
Thu, 01 Aug 2019 12:44:18 +0000http://tenthamendmentcenter.com/?p=28619The entire economy is nothing but a house of cards built on a shaky foundation of spending and debt.]]>

President Trump has repeatedly bragged about “his” economy, talking about economic growth in glowing, hyperbolic terms. To hear the president tell it (or tweet it as the case may be) Americans currently enjoy the best economy in the history of forever. But Trump’s boasting doesn’t hold up, even to a cursory examination of the data.

Economic growth over the last two years, as measured by GDP, comes in at basically the same rate as it did during the best two years of the Obama administration.

And if you dig deeper into the numbers, you will find that it’s all smoke and mirrors. The entire economy is nothing but a house of cards built on a shaky foundation of spending and debt.

The Commerce Department recently released second-quarter GDP data. Although it slightly beat expectations, growth came in at a relatively tepid 2.1 percent.

Along with releasing Q2 data, the Commerce Department also revised numbers from previous quarters. As it turns out, the economy actually grew slightly faster during Obama’s two best years (2014 and 2015) than it has during the first two years of the Trump administration.

The best year for GDP growth during the Obama era was 2015 when the economy grew by 2.9 percent. That’s identical to the 2.9 percent growth in 2018. In 2014, GDP was 2.5 percent. That compares with 2.4 percent in Trump’s first year.

In a nutshell, the data reveals very little difference between the Trump and Obama economies.

Nevertheless, Trump wasn’t discouraged about the lackluster Q2 number. He tweeted that growth was “not bad considering we have the very heavy weight of the Federal Reserve anchor wrapped around our neck.”

Q2 GDP Up 2.1% Not bad considering we have the very heavy weight of the Federal Reserve anchor wrapped around our neck. Almost no inflation. USA is set to Zoom!

The Federal Reserve has certainly had a major impact on the economy, but not in the way Trump would have you believe. In fact, the Fed’s easy money policy with its low interest rates have driven what little economic growth we’ve seen. Federal Reserve policy isn’t a millstone wrapped around the economy’s neck. It’s a hydraulic jack propping it up.

The Fed cut interest rates to zero in the wake of the 2008 crash and held them there for seven years. In December 2015, the central bank began to “normalize” rates. But it only managed to push rates to 2.5 percent (nowhere near “normal”) before the stock market began to tank in December 2018. To stop the air from coming out of the bubble, the Fed put normalization on hold. Powell and company are now set to begin cutting rates again.

These abnormally low interest rates were intended to “stimulate” the economy by incentivizing borrowing and spending. It certainly worked, as the most recent GDP report reveals.

The most important part of GDP – gross private domestic investment – was down 5.5 percent in Q2. That represents the weakest quarter since Q4 2015. Non-residential business investment was also down 0.6 percent. Residential investment fell 1.5 percent. That category has been down six straight quarters, the longest span since 2009 — during the Great Recession. Net exports saw the biggest drop in a decade last quarter.

In a nutshell, the economy supposedly grew by 2.1 percent, despite a decline in business investment, decreasing imports and falling corporate profits.

So, what drove the growth?

Borrowed money.

Consumer spending increased by 4.3 percent and accounted for nearly all of the GDP growth. That may lead you to believe that the U.S. workers have plenty of money in their pockets.

You would believe wrong.

Consumers are digging deeper and deeper into debt to pay for this spending spree. Consumer debt has risen to a record-setting $4.9 trillion. That does not include mortgages. Americans owe over $1.07 trillion in credit card debt. Credit card balances rose by $7.2 billion in May alone.

The other big boost to GDP in Q2 came in the form of government stimulus. Federal spending was up 5 percent. That added 0.85 percent to the overall GDP. Non-defense spending was up a whopping 15.9 percent in Q2. The last time government spending grew that much in a single quarter was 21 years ago. The U.S. endured two recessions in that timespan – including the Great Recession.

In other words, government spending rose last quarter by more than it did in any quarter during either of those recessions. Think about that. Trump keeps complaining that he’s not getting as much monetary stimulus via low interest rates as Obama did. But he’s getting more fiscal stimulus.

When you shatter the mirrors and blow away the smoke, you discover the truth about the supposed success of the Trump economy (and the Obama economy too for that matter) — it has nothing to do with industry or business. The consumer and the federal government spent more borrowed money.

That’s it.

The raises the $22 trillion question. How long can an economy built on debt continue to grow?

]]>“Law and Order” Conservatives Reject the Rule of Law in Favor of Federal Death Penaltyhttp://tenthamendmentcenter.com/2019/07/30/law-and-order-conservatives-reject-the-rule-of-law-in-favor-of-federal-death-penalty/
Tue, 30 Jul 2019 19:36:57 +0000http://tenthamendmentcenter.com/?p=28615U.S. Attorney General Robert Barr recently ordered the reinstatement of the federal death penalty, ending a 16-year pause in executions at the federal level. The Department of Justice announcement brought cheers of support from “Constitutional Law-and-Order Conservatives” whose desire to “uphold the law” trumps their desire to uphold the federal limitations set forth in the […]]]>

U.S. Attorney General Robert Barr recently ordered the reinstatement of the federal death penalty, ending a 16-year pause in executions at the federal level. The Department of Justice announcement brought cheers of support from “Constitutional Law-and-Order Conservatives” whose desire to “uphold the law” trumps their desire to uphold the federal limitations set forth in the Constitution itself.

The Department of Justice said the decision was made in relation to “five death-row inmates convicted of murdering, and in some cases, torturing and raping, the most vulnerable in our society – children and the elderly.”

Claiming “We owe it to the victims and their families to carry forward the sentence imposed by our justice system,” it appears that Mr. Barr has forgotten the Oath he took to uphold the Constitution, which delegated to the general government authority to punish three crimes: counterfeiting (Article I, section 8, clause 6), piracies on the high seas (Article I, section 8, clause 10) and treason (Article III, section 3).

As stated above, the states granted the general government authority over three crimes. Remember the words of James Madison in Federalist 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and prosperities of the people, and the internal order, improvement, and prosperity of the state.”

In Federalist 39, Madison also wrote that the act of establishing the Constitution was not a national, but a federal act. Given the absence of the general government’s authority over the crimes at issue in these death penalty cases, the Tenth Amendment must control here.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So now we are faced with the question of how these crimes became “federal offenses.”

A quick query, took me, not surprisingly, to an explanation provided by a law firm. The blog, entitled “Ten Ways in Which Murder Becomes a Federal Crime,” explains that criminal law is mostly handled by the states, citing the Constitution as their authority. They explain how murder can become a violation of federal law, and every one of the 10 examples they give is attributable not to constitutional authority, but to federal statute, meaning created by Congress. Lawyers, as I explained HERE, are frequently dead wrong on Constitutional issues, and the ones who wrote this explanation are no exception.

Congress, never granted the authority to punish other than the enumerated offenses, has taken it upon itself to circumvent state authority to prosecute, punish and execute those convicted of crimes that should be handled at the state level. If the states wanted the general government to deal with this behavior, however reprehensible, they would have enumerated the power under Article I section 8.

If the general government is to assume powers never delegated, the Constitution provides for the process by which amendments are to be made in Article V. Either Congress or the states may propose an amendment, and it must then be ratified by ¾ of the states. Congress simply amended the Constitution and left the states out of the procedure.

Why does this matter?

Because the federal government has a long history of simply changing the Constitution by congressional, presidential or judicial edict.

Before the ink was dry on the Constitution, Congress came up with the Sedition Act of 1798, criminalizing speech considered false, malicious or scandalous that was directed at government or government officials. And in Schenck v. US 249 U. S. 47 (1919), the judiciary got in on the act when the Supreme Court upheld the conviction of a man for violating the Espionage Act of 1917. His crime? He distributed pamphlets correctly stating that conscription was a violation of the 13th Amendment.

The Court explained that in ordinary times, his acts would have been within the purview of his Constitutional “rights.” However, the Court said, whether an act is criminal or not depends on the circumstances in which it was done. Schenck’s distribution of printed material was ruled criminal conduct. In Schenck, the United States Supreme Court did what Congress did in expanding criminal law – it held its own convention, and didn’t bother to include the states.

According to the First Amendment, Congress is prohibited from abridging freedom of speech or the press. The message does not depend on the circumstances, but ANY infringement. This is the problem with referring what was intended to be restrictions upon Congress as “rights” to be defined and regulated, as I explained HERE. When the government refuses to acknowledge the restrictions the Constitution places upon it, and instead labels them “rights,” they revert to the same tired argument: “rights are subject to regulation,” and the Supreme Court agrees, showing the fallacy of expecting one branch of the general government to restrain another.

Today we are seeing movements around the world showing people are getting tired of central governments that no longer represent the will of the people. We have movements calling for secession, and some political candidates even call for abolishing the federal government entirely.

We have also seen the U. S. government enact laws aiming to protect its image and its very existence.

For instance, there is no constitutional authority for flag codes, for instance, and particularly problematic is 18 U. S. C. 2385, which provides that those whoever “knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State…by force of violence…shall be fined under this title or imprisoned or both…”

Thomas Jefferson might very well face incarceration for his “Tree of Liberty” stance under this statute if he were around today.

“Treason” against the United States is defined in Article III, section 3 as consisting “only in levying war against them…” The term “them” refers to the States, not the general government created BY the States, but Congress conveniently decided to add protections for the general government that itself violate the First Amendment. Conveniently, the United States Supreme Court has created distinctions in this area traditionally considered “speech” or “expression” and referring to them as “conduct.” See Schenck, where the distribution of pamphlets was labeled “interfering with military efforts.”

People are getting tired of living under the rule of a central government that has abandoned its restraints and are starting to be more vocal about their disenchantment with the current system. It is entirely reasonable to entertain the notion that those perceived as a threat to the government will be subject to criminal prosecution; in fact, it has happened before, starting with the Sedition Act. But it didn’t end there, as we are still living under the Espionage Act – I am sure Julian Assange would love to be able to comment on that one!

Abraham Lincoln arrested those who opposed his war efforts against the CSA; he shut down printing presses, suspended habeas corpus (something only Congress had the legal authority to do). In 1862, he ordered the execution of 39 Dakota Indians, after what has been described as a trial lacking in fairness and due process.

On February 19, 1942, President Franklin Delano Roosevelt issued Executive Order 9066, and almost 120,000 people of Japanese descent (most American citizens) were forcibly relocated to detention camps, absent any connection with wrongdoing against the government. In more recent times, the National Defense Authorization Act grants the Executive the power to indefinitely detain those considered a threat. The power is made more palatable by deeming such people “suspected terrorists.” Is the term-limited, or are those who oppose the current system going to fall into that category? Time will tell.

The individuals set to be executed pursuant to Barr’s order are clearly not worthy of our sympathies. That being said, it is problematic to simply allow our emotions to run over our principles. We shouldn’t allow pragmatism to deter us from challenging unlawful expansions of the federal government. There is a means by which it could have attained such powers lawfully, and that has not been done.

The crimes of which the condemned have been convicted fall within the realm of the states to punish, according to the Constitution as ratified. That Constitution was designed to ensure the States would not become mere subsidiaries of a greater whole and surrender their sovereignty. If you accept the notion that the general government can simply take these powers and call them their own, then you are accepting that the rule of law must emanate from Washington, D. C., and that the states and their people are incapable of governing themselves.

Today’s advocates for limited government might be tomorrow’s enemies of the state. Constitutional conservatives supporting the reinstatement of the federal death penalty will be forced to admit that they care more about “law and order” than they do the rule of law.

One of the most difficult issues for the originalists on the Supreme Court has been state sovereign immunity.

While these originalists usually argue against interpretations that do not derive from the constitutional text, in the area of sovereign immunity they have written and joined opinions that strangely rely on techniques that bring to mind Griswold v. Connecticut’s “penumbras and emanations.” In other words, these originalists appear to be acting in a hypocritical manner.

The challenge for originalists is whether they can justify state sovereign immunity using originalist interpretive techniques.

The article argued that at the time of the Constitution, the term state referred to an independent country with full sovereignty. The term had been used that way in the Constitution itself as well as in other founding documents, such as the Declaration of Independence. Thus, we should understand that the Constitution used the term to indicate entities with sovereignty. Of course, the Constitution had taken away certain sovereign privileges from the states in a variety of ways, such as denying them the power to make war and allowing the federal government to pass laws that governed their citizens. But the Constitution should not be understood as depriving the states of core notions of their sovereignty, especially if the language of the Constitution did not expressly or at least clearly indicate such sovereignty was eliminated.

One way of understanding the argument is that the Constitution contained potentially conflicting terms—the powers of the federal government and the meaning of the term “state.” When provisions conflict, traditional interpretive canons require that one reconcile the provisions so as to do the least damage to their respective meanings. One way of doing that is to respect the explicit or clear powers of the federal government, while continuing to respect the core notions of state sovereignty when they otherwise conform to the structure of the Constitution. My article argued that respecting certain traditional state immunities, including sovereign immunity, was the correct way of reconciling these conflicting provisions.

In the recent case of Franchise Tax Board of California v. Hyatt, the Supreme Court once again wrestled with sovereign immunity. While there is much to criticize in Hyatt, one happy result is that the Supreme Court is improving the textual basis for its decisions in the area. In Hyatt, the Supreme Court appeared to adopt my use of the term “State” as a basis for sovereign immunity. After discussing the immunities that states enjoyed at the time of the Constitution, Justice Thomas wrote:

In short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations. The Constitution’s use of the term “States” reflects both of these kinds of traditional immunity. [emphasis added] And the States retained these aspects of sovereignty, “except as altered by the plan of the Convention or certain constitutional Amendments.”

Thus, the Court employed the Constitution’s use of the term “States” as a textual indication that the states continued to enjoy certain traditional immunities.

Unfortunately, the Court did not cite my article, which they certainly knew about since it was quoted and cited in one of the amicus briefs arguing for constitutional sovereign immunity. When I wrote the article back in the late 1990s, I was not sure whether I thought it was the correct original meaning of the Constitution or simply the best argument for the Court’s decisions. Over time, I have moved closer towards the latter interpretation.

But even at the time I wrote the article, I believed that the strongest argument for the results in those cases would come from a combination of the term “State” and the Necessary and Proper Clause.

Will Baude has recently developed an argument for sovereign immunity based on the limits of the Necessary and Proper Clause. Baude argues that sovereign immunity was part of the general common law at the time of the Constitution and the federal government does not have the authority to displace such sovereign immunity under the Necessary and Proper Clause. Baude contends that the Necessary and Proper Clause cannot be used to exercise a great power (as opposed to an incidental or lesser power) and abrogating state sovereign immunity might be a great power.

The argument for state sovereign immunity based on the Necessary and Proper Clause, however, would be made even stronger by the proper understanding of the term “state.” If the Constitution recognizes the sovereignty of the states, then that makes it more likely that only a great power could eliminate a key aspect of that sovereignty. Moreover, one might conclude that Congress does not have the authority to eliminate state sovereign immunity even if doing so is not a great power. If one needs to reconcile the Necessary and Proper Clause and the term “State,” one might conclude that reading the former not to authorize abrogations of state sovereign immunity was the best way of reconciling them.

While I find these arguments about the Necessary and Proper Clause to be quite plausible, unfortunately the Court’s decision in Hyatt does not involve that Clause. Instead, the case involved the question whether one state had to recognize the sovereign immunity of another state in the first state’s courts. The Necessary and Proper Clause was thus not implicated. And Will Baude and Steven Sachs argue that the Constitution leaves this question to the states decide on their own. One way, if not the only way, to protect state sovereign immunity in this context is through the term State and thus it may not be surprising that the court invoked it here.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

]]>Fight for 15 is the Wrong Battle in the Wrong Warhttp://tenthamendmentcenter.com/2019/07/27/fight-for-15-is-the-wrong-battle-in-the-wrong-war/
Sat, 27 Jul 2019 11:58:47 +0000http://tenthamendmentcenter.com/?p=28608The U.S. House recently passed a bill to gradually raise the minimum wage to $15 per hour by 2025. The move simultaneously taps into both constitutional and economic foolishness. In the first place, Congress doesn’t have any constitutional authority to legislate wages. This power is “reserved to the States respectively, or to the people.” More […]]]>

The U.S. House recently passed a bill to gradually raise the minimum wage to $15 per hour by 2025. The move simultaneously taps into both constitutional and economic foolishness.

In the first place, Congress doesn’t have any constitutional authority to legislate wages. This power is “reserved to the States respectively, or to the people.” More significantly, the “Fight for 15” obscures a more fundamental issue: The United States doesn’t really have a wage problem. It has a money problem.

Courts, politicians and pundits have redefined the meaning of commerce to encompass every conceivable economic activity. But during the drafting and ratification of the Constitution, commerce had a very specific and limited meaning. In a nutshell, commerce means trade — the act of exchanging goods. The power to regulate “interstate commerce” only empowers the federal government to make laws relating to the movement of physical goods – in commerce – across state lines.

The Commerce Clause was never intended to give the federal government the power to regulate or control manufacturing, agriculture, labor laws, wages, healthcare or a host of other activities claimed by the federal government today.

The framers wanted the federal government to possess the power to stop states from inhibiting trade through levying tariffs on neighbors. For instance, they wanted to be able to prevent Tennessee from slapping a fee on bourbon imported from Kentucky. It was a power intended to protect free and robust trade. The commerce clause also gave the federal government the authority to pursue a unified trade policy with other nations, as opposed to each state enforcing its own policy.

It is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend it all the qualities and incidental means belonging to the power over foreign commerce.

In simplest terms, the power to regulate commerce does not give Congress the authority to set wage floors. Under the original, legal meaning of the Constitution, the minimum wage bill is blatantly unconstitutional.

THE BIGGER PICTURE

Even if Congress had the power to set minimum wages, current efforts to impose a $15 per hour wage floor ignore the more fundamental problem. In effect, a minimum wage is like putting a bandaid on a severed artery.

The problem isn’t wages. The United States have a money problem.

Government devaluation of the dollar over the years has stolen money from average people. But instead of dealing with the core issue, the “Fight for 15” centers around wage policy and offers a solution that will just exacerbate the problem because it’s based on shoddy economics.

A recent study by the Congressional Budget Office confirms this. It projected that increasing the minimum wage would boost pay for about 17 million workers, but it would eliminate up to 3.7 million jobs. The median job-loss – the number you probably saw touted in headlines – was estimated at 1.3 million.

The CBO concluded that the job losses would have the biggest impact on women, workers without high school degrees and part-time employees. According to a report published by The Hill on the study, the CBO estimated that a $15 minimum wage would reduce family incomes by $9 billion.

None of this should come as any surprise. The fundamental economic laws of supply and demand tell us that artificially raising the wage level will decrease the demand for low-wage employees. From this simple economic truth, we can safely say that employment levels for low-skilled workers will be lower with a higher minimum wage than it otherwise would have been. The CBO study confirms this reality. But we really didn’t need a study to tell us this.

Raising the minimum wage might make for good politics, but it’s bad economics. As with any government policy, it will produce winners and losers. People who keep their jobs will benefit from higher wages. But some people will suddenly have their wages cut to zero. Advocates of government intervention love to highlight the winners, even as they sweep the losers under the rug.

But economic illiteracy shouldn’t obscure the fact that minimum wage advocates do seek to solve a legitimate problem facing U.S. workers: their dollars buy less and less every year.

The money system is broken, and it needs to be fixed.

The U.S. government’s monetary policy devalues our currency, and that means less purchasing power for you and me. Simply put, when the government effectively prints currency out of thin air, a dollar no longer buys the same amount of stuff it once did. In effect, Federal Reserve quantitative easing is like printing money. It debases the currency. The Fed has engaged in the practice for years.

So, what does this have to do with wages? Well, consider this: in 1964, the minimum wage stood at $1.25. To put it another way, a minimum wage worker earned five silver quarters for every hour worked. Today, you can’t even buy a cup of coffee with those five quarters.

But the silver melt-value of those five quarters today stands at around $14.80

That’s getting close to your $15 per hour minimum wage.

This vividly illustrates currency debasement. In terms of purchasing power, the value of the silver remains relatively stable, but the value of a dollar shrinks. The long-term rise in the price of silver reflects this reality.

Now flip things around. Today, it takes 60 quarters to make up the $15 minimum wage advocates want. If you paid that in 1964 silver quarters, the value of the metal would be over $175.

In an economy with stable money, prices tend to fall, not rise. That means more purchasing power to the poor, low-wage workers, those on fixed incomes, and savers. But the government currently debases the currency. Politicians and central bankers claim their policies stabilize economies and protect the people from currency debasement. But in truth, these policies only enrich the politically well-connected at the expense of you and me.

Minimum wage hikes only mask the problem. We need to fix the money. The only way to do that is through currency competition – encouraging the use of gold, silver and crypto to compete with Federal Reserve notes.

Constitutional tender expert Professor William Greene said when people in multiple states actually start using gold and silver instead of Federal Reserve Notes, it could create a “reverse Gresham’s effect,” drive out bad money, effectively nullify the Federal Reserve, and end the federal government’s monopoly on money.

“Over time, as residents of the state use both Federal Reserve notes and silver and gold coins, the fact that the coins hold their value more than Federal Reserve notes do will lead to a “reverse Gresham’s Law” effect, where good money (gold and silver coins) will drive out bad money (Federal Reserve notes). As this happens, a cascade of events can begin to occur, including the flow of real wealth toward the state’s treasury, an influx of banking business from outside of the state – as people in other states carry out their desire to bank with sound money – and an eventual outcry against the use of Federal Reserve notes for any transactions.”

Once things get to that point, Federal Reserve notes would become largely unwanted and irrelevant for ordinary people. Nullifying the Fed on a state by state level can move us in that direction.

]]>The Tyranny of the Police State Disguised as Law-and-Orderhttp://tenthamendmentcenter.com/2019/07/25/the-tyranny-of-the-police-state-disguised-as-law-and-order/
Thu, 25 Jul 2019 13:24:57 +0000http://tenthamendmentcenter.com/?p=28606Enough already. Enough with the distractions. Enough with the partisan jousting. Enough with the sniping and name-calling and mud-slinging that do nothing to make this country safer or freer or more just. We have let the government’s evil-doing, its abuses, power grabs, brutality, meanness, inhumanity, immorality, greed, corruption, debauchery and tyranny go on for too […]]]>

Enough already.

Enough with the distractions. Enough with the partisan jousting.

Enough with the sniping and name-calling and mud-slinging that do nothing to make this country safer or freer or more just.

We have let the government’s evil-doing, its abuses, power grabs, brutality, meanness, inhumanity, immorality, greed, corruption, debauchery and tyranny go on for too long.

We have seen this convergence before in Hitler’s Germany, in Stalin’s Russia, in Mussolini’s Italy, and in Mao’s China: the rise of strongmen and demagogues, the ascendency of profit-driven politics over deep-seated principles, the warring nationalism that seeks to divide and conquer, the callous disregard for basic human rights and dignity, and the silence of people who should know better.

Yet no matter how many times the world has been down this road before, we can’t seem to avoid repeating the deadly mistakes of the past. This is not just playing out on a national and international scale. It is wreaking havoc at the most immediate level, as well, creating rifts and polarities within families and friends, neighborhoods and communities that keep the populace warring among themselves and incapable of presenting a united front in the face of the government’s goose-stepping despotism.

We are definitely in desperate need of a populace that can stand united against the government’s authoritarian tendencies.

Surely we can manage to find some common ground in the midst of the destructive, disrupting, diverting, discordant babble being beamed down at us by the powers-that-be? After all, there are certain self-evident truths—about the source of our freedoms, about the purpose of government, about how we expect to be treated by those we appoint to serve us in government offices, about what to do when the government abuses our rights and our trust, etc.—that we should be able to agree on, no matter how we might differ politically.

Disagree all you want about healthcare, abortion and immigration—hot-button issues that are guaranteed to stir up the masses, secure campaign contributions and turn political discourse into a circus free-for-all—but never forget that our power as a citizenry comes from our ability to agree and stand united on certain principles that should be non-negotiable.

Yet no matter how we might differ about how the government allocates its spending, surely we can agree that the government’s irresponsible spending, which has saddled us with insurmountable debt, is pushing the country to the edge of financial and physical ruin.

That’s just one example of many that shows the extent to which the agents of the American police state are shredding the constitutional fabric of the nation, eclipsing the rights of the American people, and perverting basic standards of decency.

No matter how we might differ about the role of the U.S. military in foreign affairs, surely we can agree that America’s war spending and commitment to policing the rest of the world are bankrupting the nation and spreading our troops dangerously thin.

All of the imperial powers amassed by Barack Obama and George W. Bush—to kill American citizens without due process, to detain suspects indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to suspend laws during wartime, to disregard laws with which they might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to operate a shadow government, and to act as a dictator and a tyrant, above the law and beyond any real accountability—were inherited by Donald Trump. These presidential powers—acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and which can be activated by any sitting president—enable past, president and future presidents to operate above the law and beyond the reach of the Constitution.

Yet no matter how we might differ about how success or failure of past or present presidential administrations, surely we can agree that the president should not be empowered to act as an imperial dictator with permanent powers.

Increasingly, at home, we’re facing an unbelievable show of force by government agents. For example, with alarming regularity, unarmed men, women, children and even pets are being gunned down by twitchy, hyper-sensitive, easily-spooked police officers who shoot first and ask questions later, and all the government does is shrug and promise to do better. Just recently, in fact, the 11th Circuit Court of Appeals cleared a cop who aimed for a family’s dog (who showed no signs of aggression), missed, and instead shot a 10-year-old lying on the ground. Indeed, there are countless incidents that happen every day in which Americans are shot, stripped, searched, choked, beaten and tasered by police for little more than daring to frown, smile, question, or challenge an order. Growing numbers of unarmed people are being shot and killed for just standing a certain way, or moving a certain way, or holding something—anything—that police could misinterpret to be a gun, or igniting some trigger-centric fear in a police officer’s mind that has nothing to do with an actual threat to their safety.

No matter how we might differ about where to draw that blue line of allegiance to the police state, surely we can agree that police shouldn’t go around terrorizing and shooting innocent, unarmed children and adults or be absolved of wrongdoing for doing so.

Nor can we turn a blind eye to the transformation of America’s penal system from one aimed at protecting society from dangerous criminals to a profit-driven system that dehumanizes and strips prisoners of every vestige of their humanity. For example, in Illinois, as part of a “training exercise” for incoming cadets, prison guards armed with batons and shields rounded up 200 handcuffed female inmates, marched them to the gymnasium, then forced them to strip naked (including removing their tampons and pads), “bend over and spread open their vaginal and anal cavities,” while male prison guards promenaded past or stood staring. The 7th Circuit Court of Appeals ruled the entire dehumanizing, demoralizing mass body cavity strip search—orchestrated not for security purposes but as an exercise in humiliation—was legal. Be warned, however: this treatment will not be limited to those behind bars. In our present carceral state, there is no difference between the treatment meted out to a law-abiding citizen and a convicted felon: both are equally suspect and treated as criminals, without any of the special rights and privileges reserved for the governing elite. In a carceral state, there are only two kinds of people: the prisoners and the prison guards.

No matter how we might differ about where to draw the line when it comes to prisoners’ rights, surely we can agree that no one—woman, man or child—should be subjected to such degrading treatment in the name of law and order.

No matter how we might differ about the deference due to those in uniform, whether military or law enforcement, surely we can agree that America’s Founders had good reason to warn against the menace of a national police force—a.k.a. a standing army—vested with the power to completely disregard the Constitution.

No matter how we might differ about the extent to which the government has the final say in how it flexes it power and exerts its authority, surely we can agree that the tyranny of the Nanny State—disguised as “the better good,” marketed as benevolence, enforced with armed police, and inflicted on all those who do not belong to the elite ruling class that gets to call the shots— should not be allowed to pave over the Constitution.

At its core, this is not a debate about politics, or constitutionalism, or even tyranny disguised as law-and-order. This is a condemnation of the monsters with human faces that have infiltrated our government.

For too long now, the American people have rationalized turning a blind eye to all manner of government wrongdoing—asset forfeiture schemes, corruption, surveillance, endless wars, SWAT team raids, militarized police, profit-driven private prisons, and so on—because they were the so-called lesser of two evils.

Yet the unavoidable truth is that the government has become almost indistinguishable from the evil it claims to be fighting, whether that evil takes the form of terrorism, torture, drug trafficking, sex trafficking, murder, violence, theft, pornography, scientific experimentations or some other diabolical means of inflicting pain, suffering and servitude on humanity.

No matter how you rationalize it, the lesser of two evils is still evil.

So how do you fight back?

How do you fight injustice? How do you push back against tyranny? How do you vanquish evil?

What we are grappling with today is a government that is cutting great roads through the very foundations of freedom in order to get after its modern devils. Yet the government can only go as far as “we the people” allow.

Therein lies the problem.

The consequences of this failure to do our due diligence in asking the right questions, demanding satisfactory answers, and holding our government officials accountable to respecting our rights and abiding by the rule of law has pushed us to the brink of a nearly intolerable state of affairs.

Intolerable, at least, to those who remember what it was like to live in a place where freedom, due process and representative government actually meant something. Having allowed the government to expand and exceed our reach, we now find ourselves on the losing end of a tug-of-war over control of our country and our lives.

The hour grows late in terms of restoring the balance of power and reclaiming our freedoms, but it may not be too late. The time to act is now, using all methods of nonviolent resistance available to us.

“Don’t sit around waiting for the two corrupted established parties to restore the Constitution or the Republic,” Naomi Wolf once warned. Waiting and watching will get us nowhere fast.

If you’re watching, you’re not doing.

Easily mesmerized by the government’s political theater—the endless congressional hearings and investigations that go nowhere, the president’s reality show antics, the warring factions, the electoral drama—we have become a society of watchers rather than activists who are distracted by even the clumsiest government attempts at sleight-of-hand.

It’s time for good men and women to do something. And soon.

Wake up and take a good, hard look around you. Start by recognizing evil and injustice and tyranny for what they are. Stop being apathetic. Stop being neutral. Stop being accomplices. Stop being distracted by the political theater staged by the Deep State: they want you watching the show while they manipulate things behind the scenes. Refuse to play politics with your principles. Don’t settle for the lesser of two evils.

As British statesman Edmund Burke warned, “The only thing necessary for the triumph of evil is for good men [and women] to do nothing.”

]]>Unconstitutional? Extra-Constitutional? What’s the difference?http://tenthamendmentcenter.com/2019/07/23/unconstitutional-extra-constitutional-whats-the-difference-2/
Tue, 23 Jul 2019 16:28:17 +0000http://tenthamendmentcenter.com/?p=28602You often hear that an action is “constitutional” or “unconstitutional.” More rarely, you hear the term “extra-constitutional.” Exactly how do these words differ? An action is constitutional if taken in accordance with a governing constitution. The governing constitution may be written or unwritten. In Britain, to become law a bill must pass the House of Commons and […]]]>

You often hear that an action is “constitutional” or “unconstitutional.” More rarely, you hear the term “extra-constitutional.” Exactly how do these words differ?

An action is constitutional if taken in accordance with a governing constitution. The governing constitution may be written or unwritten. In Britain, to become law a bill must pass the House of Commons and (usually) the House of Lords, and then be approved by the Queen. That is the constitutional procedure. An attempt to enact a law purely by passage in the House of Lords would be unconstitutional.

Of course, a constitutional rule may be changed. In the 18th century, it was unconstitutional to make a law unless both the House of Commons and the House of Lords approved. In the 19th and 20th centuries, however, the rules were changed to allow lawmaking in certain circumstances without the consent of the Lords. That procedure thereby became constitutional.

The same general principle applies to written constitutions. Under the U.S. Constitution, a law that has passed the House and Senate and been signed by the president is constitutional unless it is inconsistent with some other term of the Constitution. A measure that attempted to ban free speech for all Democrats would be unconstitutional as violating the First Amendment, even if it somehow managed to win approval of Senate, House, and president.

In our federal system a state measure may be constitutional under the U.S. Constitution but unconstitutional under the basic law of the state—or vice versa. For example, nothing in the U.S. Constitution bans states from making gifts of public money to private persons or entities.

As far as that document is concerned, a state legislative act making such a grant is perfectly constitutional. However, some state constitutions do contain provisions banning gifts of public money to private persons or entities. In that case, such a grant is unconstitutional at the state level, even if perfectly legal at the federal level. (Note: In some states with constitutional provisions of this kind, activist courts have gutted them.)

On the other hand, suppose a state legislature adopted a “bill of attainder”—a legislative measure declaring a person to be a felon. If the state’s constitution does not contain an express or implied ban on such measures, then it would be constitutional at the state level.

But it is unconstitutional at the federal level, because the U.S. Constitution forbids states from adopting bills of attainder. In this instance, the federal document controls.

Of course, an enactment also may be unconstitutional under the basic laws of both the state and federal governments. Most, if not all, state constitutions protect free speech, so a law banning speech by Democrats would be unconstitutional at both levels.

Finally, we come to the term extra-constitutional. This refers to an action that is simply outside the purview of the governing constitutions. For example, American constitutions have nothing to say about whether you must or must not wear a hat. Your decision on that subject is extra-constitutional. (Some would argue that it is covered by the Ninth Amendment, but I disagree for reasons outlined in my book, The Original Constitution: What It Actually Said and Meant.)

Here’s another example: The U.S. Constitution authorizes, under certain circumstances, three kinds of conventions (ad hoc meetings for specific political purposes). Article V authorizes both a “Convention for proposing Amendments” and state conventions for ratifying proposed amendments. Article VII authorizes state conventions for ratifying the Constitution itself. Calling any of those gatherings in compliance with the Constitution’s rules is, of course, constitutional.

But the U.S. Constitution does not authorize a constitutional convention—that is, a gathering charged with drafting and proposing an entirely new basic law. If the states wished, they could call such a meeting, but doing so would be extra-constitutional. Indeed, states have done so on two occasions: Virginia called, and 12 states, staffed the 1787 constitutional convention outside the Articles of Confederation. And in 1861, seceding southern states called and staffed a constitutional convention in Montgomery, Alabama. Both of these actions were extra-constitutional.

An extra-constitutional action may be legal or illegal under the law of the prevailing government (“positive law”). Deciding whether to wear a hat is both extra-constitutional and legal. Similarly, because the Articles of Confederation comprised a mere treaty or league rather than a true government, it was perfectly legal for the sovereign states to hold the 1787 Constitutional Convention and then set aside the Articles in favor of the convention’s proposal. On the other hand, the U.S. Constitution rendered it illegal for the southern states to implement the Montgomery convention’s proposed constitution.

The right of revolution defended in the Declaration of Independence is the American people’s ultimate extra-constitutional remedy. Of course, revolutions violate the prevailing government’s positive law. But as the Founders recognized, sometimes a government becomes so oppressive that natural law permits a people to override positive law.

]]>What Do We Mean By “States’ Rights?”http://tenthamendmentcenter.com/2019/07/21/what-do-we-mean-by-states-rights/
Sun, 21 Jul 2019 13:56:27 +0000http://tenthamendmentcenter.com/?p=28600You’ll often hear the term “states’ rights” thrown around. When I use that term (and I really don’t like to) somebody will invariably respond, “States can’t have rights. Only people have rights.” You know what? They’re right. A geographical area can’t have rights. That’s nonsensical. And a state government can’t have rights. It has powers. […]]]>

You’ll often hear the term “states’ rights” thrown around. When I use that term (and I really don’t like to) somebody will invariably respond, “States can’t have rights. Only people have rights.”

You know what? They’re right.

A geographical area can’t have rights. That’s nonsensical. And a state government can’t have rights. It has powers. So, what in the world to do we mean by “states’ rights?”

Well, it’s really just a short-hand way to talk about the rights of the people of the states.

In the American system, the people of each state are sovereign. In that sense, states constitute the 50 independent, sovereign political societies that make up the United States. It was the people of the states who ratified the Constitution and formed a union.

And of course, people do have rights.

This is a key concept to understand. The United States are not a “nation” – not in the strict sense of the word. The U.S. system is a federated republic. This is a crucial distinction that I talk about in a recent podcast. You can listen HERE.

James Madison explained the meaning of the “states” as sovereign parties to the Constitution in the Virginia Report of 1800. He was defending the Virginia Resolutions of 1798 where he asserted that the “states” ratified the Constitution. As Madison makes clear, by states he meant “the people of the states.” This is one of the foundational principles underlying the American political system.

Madison wrote:

“The other position involved in this branch of the resolution, namely, ‘that the states are parties to the Constitution or compact,’ is in the judgment of the committee, equally free from objection. It is indeed true that the term ‘States,’ is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied.

Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity.

Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance whatever different constructions of the term ‘States,’ in the resolution may have been entertained, all will at least concur in that last mentioned; because in that sense, the Constitution was submitted to the “States”: In that sense the ‘States’ ratified it; and in that sense of the term ‘States,’ they are consequently parties to the compact from which the powers of the Federal Government result.” [Emphasis added]

So, when we talk about states’ rights, we really mean the rights of the people who make up each sovereign political society in the American system – their right to establish governments, delegate powers and even to rescind those powers.

]]>Why Do Central Bankers Oppose a Gold Standard?http://tenthamendmentcenter.com/2019/07/19/why-do-central-bankers-oppose-a-gold-standard/
Fri, 19 Jul 2019 11:44:31 +0000http://tenthamendmentcenter.com/?p=28586The fact that politicians, central bankers, and “too big to fail” bankers all oppose a gold standard is a tacit admission that hard money would serve as an effective constraint on their activities.]]>

Federal Reserve Chair Jerome Powell’s testimony before Congress was closely scrutinized not just for its economic implications but also for its political overtones. Powell cited “trade tensions” as a cause for concern about the strength of the global economy. He clearly seemed to be blaming President Trump’s tariffs.

But if the tariffs are what ultimately move the Fed to cut rates, Trump will have finally gotten what he wants out of Powell. In recent weeks, Trump has stepped up his attacks on the central bank, calling it the biggest problem facing the economy, floating the idea of firing Powell, and suggesting his administration would match China’s and Europe’s “currency manipulation game.”

Although many presidents before have pursued currency interventions and quibbled with Fed chairmen over interest rate policy, none have ever done it as openly and directly as the current one. Fed apologists in the media and in Congress view the central bank’s “independence” as being under assault.

The notion that the Fed ever was or could be independent of politics is a fanciful one. When a small group of people – appointed and confirmed by politicians – are empowered to make decisions that can make or break markets, economies, and elections, politics will inevitably intrude.

Fed chairman Jerome Powell may sincerely want to make monetary policy without regard to politics. But when political forces exert themselves on the Fed, he finds himself in an impossible catch-22. If he fails to cut rates, then the central bank risks becoming seen as the enemy of half the country as President Trump makes it his foil at campaign rallies. If Powell does what the President wants, then Democrats will accuse him of succumbing to political pressure from the White House.

Democrats used Powell’s Congressional testimony as an opportunity to get him on record in opposition to a gold standard.

Although Trump himself is not calling for a gold-pegged dollar, one of his nominees to the Fed Board of Governors is – or at least has in the past. Potential Fed policymaker Judy Shelton has written and spoken extensively about the gold standard.

Ms. Wexton: Chairman Powell, do you think that the US should go back to the Gold Standard for our currency?

Chairman Powell: Let me say I wouldn’t… This could feasibly be considered commenting on a particular nominee who has recommended that, and of course, I will not do that. I will answer your question, but I want to make sure that this isn’t interpreted in that way. So, no, I don’t think that would be a good idea. The idea would be… Congress would have to pass a law and that law would say that our job with monetary policy is to manage the level of the dollar, stabilize the dollar price of gold, and we would then not be looking at maximum employment or stable prices. There have been plenty of times in the fairly recent history where the price of gold has sent signals that would be quite negative for either of those goals.

Ms. Wexton: Much better mission for the Fed is what you’re doing right now.

Chairman Powell: Well, this is why every country in the world abandoned the Gold Standard some decades ago.

Ms. Wexton: Okay. Well, that reluctance or that desire not to go back to the Gold Standard is something that you have in common with the CEO’s of seven of the world’s globally systemic important banks.

It’s no surprise that “too big to fail” bankers who depend on special privileges from the Fed and other central banks don’t like gold. It’s hard to orchestrate multi-trillion dollar bailouts of the financial system when the currency supply is limited by gold.

Some see that as a disadvantage. Others see it as a distinct advantage because it discourages banks from getting too big to fail to begin with.

Chairman Powell claims that gold-backed money would prevent the Fed from pursuing full employment – as if all workers have monetary planners to thank for their jobs – and stable prices. Of course, by “stable prices” he means prices that rise at his target rate of 2% inflation. He means a dollar that steadily loses purchasing power over time instead of retaining it like a sound dollar would.

Sound money is inherently stable and inherently independent. It can be based on gold, silver, or even certain other assets with intrinsic value. If the dollar were defined simply in terms of grains of silver, for example, then monetary policy and the politics surrounding it would recede into the background. No longer would markets swing wildly based on the particular phraseology contained in Fed policy statements.

No longer would every incumbent administration push for easy money policies. Instead of counting on the Fed to devalue existing debt and pave the way to pile on more of it, hard choices would have to be made by members of Congress about paying down debt and embarking on a fiscally sustainable path.

The fact that politicians, central bankers, and “too big to fail” bankers all oppose a gold standard is a tacit admission that hard money would serve as an effective constraint on their activities.

]]>Veterans Struggle to Gain Access to Medical Marijuanahttp://tenthamendmentcenter.com/2019/07/17/veterans-struggle-to-gain-access-to-medical-marijuana/
Wed, 17 Jul 2019 19:01:12 +0000http://tenthamendmentcenter.com/?p=28595Thirty-three states and the District of Columbia have enacted medical marijuana programs. Despite this expansion military veterans often face greater obstacles to gaining access to medical marijuana than other groups. Veterans suffer widespread health problems including chronic pain, traumatic brain injuries, and post-traumatic stress disorder at a rate higher than the general population. When veterans […]]]>

Thirty-three states and the District of Columbia have enacted medical marijuana programs. Despite this expansion military veterans often face greater obstacles to gaining access to medical marijuana than other groups.

Veterans suffer widespread health problems including chronic pain, traumatic brain injuries, and post-traumatic stress disorder at a rate higher than the general population. When veterans seek medical care from the federal Veterans Administration health system, they not only lack access to medical marijuana but may fear jeopardizing all federal benefits if they admit to personal use.[1] Notwithstanding the rapid spread of medical marijuana across the United States, many veterans report feeling left behind.[2]

Military Veterans and Health Problems

A military veteran is defined as a person who previously served in the United States military. This group includes both wartime and peacetime veterans. There are over 20 million veterans currently living in the United States. The majority of these served during Vietnam or the “War on Terror” campaigns. Veterans are increasingly underrepresented in the legislative decision-making process. The percentage of veterans serving in Congress declined from 81 percent in 1975 down to approximately 20 percent today.[3]

Veterans face unique health risks as a result of their military service. The most obvious are physical wounds from gunshots, indirect fire, or improvised explosive devices. These wounds range from minor to catastrophic. Many of these injuries require ongoing medical care and pain management. Advances in battlefield medicine have resulted in fewer battlefield deaths, but also a larger proportion of veterans returning home with ongoing medical needs. Some military veterans are exposed to special chemical, environmental or biological hazards, such as Agent Orange in Vietnam or burning oil wells in Iraq.

Perhaps the most characteristic medical problem of veterans is post-traumatic stress disorder (“PTSD”). The VA estimates roughly 15 percent of Vietnam veterans currently suffer from PTSD, but as many as 30 percent have experienced PTSD at some point in their lives. About 12 percent of Desert Storm veterans experience PTSD, and between 11 to 20 percent of War on Terror (Operation Iraqi Freedom and Operation Enduring Freedom) veterans suffer from the disorder.[4] By comparison, only about 3.5 oercent of the general adult population suffers from PTSD. Combat stress is a common cause of PTSD, although some veterans suffer as the result of sexual assault while serving in uniform. Sexual assault in the military occurs at a higher rate than the general population.

PTSD was formerly known as “shell shock” or “combat fatigue” during the mid-twentieth century. Many patients with PTSD report having flashbacks or intrusive thoughts which result in involuntarily re-living past traumatic events. Other symptoms include; avoiding reminders, negative thoughts or feelings, and arousal and reactive symptoms.[5] The most common treatments for PTSD are cognitive behavioral therapy or selective serotonin uptake inhibitors (SSRIs) including Paxil, Zoloft, and Prozac.[6] SSRIs have side effects including insomnia, drowsiness, nausea, dizziness, nervousness, agitation, dry mouth, headache, blurred vision, and sexual problems.[7]

Veterans suffer from mental illness and suicide at a rate 22 percent greater than the general population. On average 20 veterans commit suicide every day and 6 of these will have recently used VHA services.[8]

Other common health problems include tinnitus, hearing loss, and lower-back pain. Veterans may also suffer chronic pain resulting from injuries unrelated to combat including training injuries and auto accidents.

What is the VA’s Position of Medical Marijuana?

Because the VA is a federal agency it adheres to marijuana’s complete illegality as a Schedule 1 controlled substance.[9] The VA position on medical marijuana is documented in VHA Directive 1315.[10] Although VHA Directive 1315 states that veterans must not be denied VA benefits solely due to participation in a state medical marijuana program, marijuana use must be entered into the patient’s electronic medical records.[11] The VA cannot recommend or prescribe medical marijuana under any circumstances.[12]

Nine million veterans are enrolled in the Department of Veterans Affairs (VA) healthcare program (VHA).[13] The VA has one of the lowest favorability ratings of any federal agency. Recent scandals such as Walter Reed hospital have brought to public view some of the challenges patients of VA medical care experience.

According to the VHA website, it is: the nation’s largest health care system, employs more than 306,000 full-time health care professionals and support staff at 1,243 health care facilities, including 172 VA Medical Centers and 1,062 outpatient sites of care of varying complexity (VHA outpatient clinics).

VHA is the nation’s largest provider of graduate medical education and a major contributor to medical and scientific research. More than 73,000 active volunteers, 127,000 health professions trainees, and approximately 15,000 affiliated medical faculty are also an integral part of the VHA community.[14]

A recent study by the American Legion suggests 22 percent of veterans are already using marijuana for medicinal purposes. Ninety-two percent of veterans support research into medical cannabis and 83 percent of all veteran households support legalizing medical cannabis. Sixty percent of respondents did not live in a state with medical cannabis.[15] The VA reports about 60 percent of combat veterans and 50 percent of older veterans suffer from chronic pain, compared to 30 percent of Americans nationwide.[16] Many of these veterans are prescribed opiates for their chronic pain. A recent report from the National Institutes of Health found the rate of accidental poisoning mortality for VHA patients is twice that of the general population.[17]

Veterans may participate in state-level medical and recreational marijuana programs. However, they must pay for medical marijuana out of pocket. If veterans cannot afford healthcare outside of the VHA system, they may be financially incapable of participating in state-level medical marijuana programs. VHA treatment may require blood testing and urinalysis which can reveal marijuana use. There is anecdotal evidence the Lyons New Jersey Veterans Affair Medical Center in Somerset County is disregarding positive marijuana results from patients in New Jersey’s medical marijuana program.[18] Lyons is one of two VHA treatment facilities in New Jersey.

III. Currently Serving Military

Current members of the military are subject to the Uniform Code of Military Justice (UCMJ) and subject to monthly drug-testing.[19] The Army’s Substance Abuse Program (ASAP) is detailed in AR 600-85. These regulations also cover members of the National Guard and Reserves who serve in states with medical marijuana programs. The UCMJ applies to members on the military at all times, including both on and off post and in and out of uniform. Failing a drug test can result in demotion, administrative actions, or an other-than-honorable discharge. A dishonorable discharge greatly reduces a veteran’s eligibility for federal benefits. The Department of Defense makes no exceptions for active or reserve duty personnel for medical marijuana use, even if such use is legal under applicable state laws. Unlike civilian courts, court-martial proceedings have broad discretion to administer judicial punishment including a bad-conduct discharge, confinement, fines, and reduction in rank.

The use and possession of marijuana are prohibited under the UCMJ by Section 912a, Article 112a (10 U.S.C.S. § 912a):

(a) Any person subject to this chapter [10 USCS §§ 801 et seq.] who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.

(b) The substances referred to in subsection (a) are the following:

(1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.[20]

Many minor infractions involving marijuana possession are likely handled informally by unit commanders and senior non-commissioned officers on a case by case basis. Unit commanders may also administer Article 15 non-judicial punishment. The Army requires annual substance abuse briefings for all soldiers. Some commanders have suggested owning cannabis-related stocks can negatively affect their security clearance.[21]

United States v. Gonzales, No. ACM S32386, 2017 CCA LEXIS 522 (A.F. Ct. Crim. App. Aug. 2, 2017) is indicative of how military courts treat medical marijuana use by active-duty servicemembers. In Gonzales a servicemember with a California medical marijuana card pled guilty to violating UCMJ Article 112a. He was sentenced to a bad-conduct discharge and sentenced to two months in confinement.

Service members married to lawful medical marijuana patients may also face punishment under the UCMJ. Military courts have come to inconsistent conclusions when considering marijuana within the marital home. Cohabitating spouses are generally presumed to have control over marital property including the ability to consent to a search. United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988 (1974), Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793 (1990). Different military courts have reached different conclusions regarding how broadly to apply constructive possession should be applied to particular facts. It is well established that military courts may use circumstantial evidence to establish guilt. United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004), United States v. Lewis, 51 M.J. 376, 380 (C.A.A.F. 1999), United States v. Caballero, 37 M.J. 422, 425 (C.M.A. 1993).

These determinations are extremely fact-specific and difficult to predict. One military court held that a large amount quantity of marijuana found in an on-base apartment may not be enough for a conviction if there is evidence the servicemember was “just a bystander.” United States V. Trevino, 50 C.M.R. 381 (U.S. A.F.C.M.R. 1975). A conviction requires clear and compelling evidence of guilt. The evidence instead indicated the marijuana was under the control of visiting family of the servicemember’s spouse:

Here, without dispute, the marihuana was discovered in the accused’s apartment and the circumstances gave rise to an inference that it was being possessed with the intent to distribute the substance. However, if true, the accused’s statement that the marihuana was not his and that he had nothing whatever to do with it, all of which was corroborated, constituted a complete defense to the offenses charged. By the terms of his explanation, the accused was no more than a bystander who, by the force of circumstances, had knowledge of the presence of marihuana. In short, he just “happened to be where the action was.” United States v Myers, 20 USCMA 269, 43 CMR 109 (1971). Possession, in the context of the offenses here charged, requires more than that; it “involves the exercise of dominion and control over the thing allegedly possessed . . . and it is not enough to place [an accused] in the presence of other persons having possession to import possession to him.” United States v Myers, supra; see United States v Aloyian, 16 USCMA 333, 36 CMR 489 [**9] (1966). United States V. Trevino, 50 C.M.R. 381 (U.S. A.F.C.M.R. 1975).

Likewise, in United States v. Grubbs, No. ARMY 20021404, 2004 CCA LEXIS 434 (A. Ct. Crim. App. Sep. 9, 2004) a defendant soldier’s guilty plea to on-post marijuana possession was set aside because the trial judge did not explain constructive possession involves a knowledge requirement. In Grubbs, the soldier admitted two grams of marijuana was found in his dresser, but he was not asked how it got there or how he knew the substance was marijuana. The soldier was still given a bad-conduct discharge, a reduction in rank, fined, and ordered to a period of confinement on other grounds.

In United States v. Corpening, 38 M.J. 605 (U.S. A.F.C.M.R. 1993) a soldier successfully challenged his court-martial because all the elements of constructive possession were not proven. In Corpening marijuana was found in a car in which soldier was traveling, but this alone was not sufficient to prove constructive possession.

An accused may be convicted of wrongful possession of illicit drugs either by proof of actual physical control or by knowingly exercising dominion and control over the contraband, that is, “constructive possession.” United States v. Wilson, 7 M.J. 290 (C.M.A. 1979). The mere presence of an accused on the premises where an illicit drug is found or his proximity to a proscribed drug is, of itself, insufficient to support a conviction based on constructive possession of the drug. Id. at 294; Moore v. United States, 429 U.S. 20 (1976); United States v. Gainey, 380 U.S. 63 (1975). The government must also establish that the appellant had the right to or was in a position to exercise dominion and control over the drugs. Wilson, 7 M.J. at 293. United States v. Corpening, 38 M.J. 605 (U.S. A.F.C.M.R. 1993).

These rulings create considerable uncertainty for servicemembers married to lawful medical marijuana patients. At least some lawyers have concluded servicemembers face UCMJ punishment for holding medical marijuana for their spouse in an off-post marital home.[22] If members of the military are married to a spouse lawfully using medical marijuana the best course of action is to err on the side of caution. One option is for the spouse to withdraw from their state’s medical marijuana program completely. Another option is to store and consume medical marijuana exclusively at a separate location, although this creates potential logistical and public safety risks including impaired driving.

If medical marijuana is stored within the marital home, both spouses should ensure any marijuana is not in a common area, comingled with servicemembers property, or otherwise in an area under the servicemember’s exclusive control such as a dresser or container. The risk that a military court could use circumstantial evidence to prove a servicemember had constructive possession of a controlled substance is significant. Responsible attorneys should counsel military spouses of these risks and encourage proactive measures to prevent jeopardizing a military career and its associated benefits.

Active duty servicemembers and their families receive healthcare through the TRICARE system. TRICARE provides coverage for 9.4 million beneficiaries.[23] TRICARE is a member organization in the Defense Health Agency and the Military Health System. Because TRICARE is a federal agency it adheres to the complete illegality of cannabis as a controlled substance under federal law.

Proposals for Reform

Several veteran’s groups advocate for greater access to medical marijuana. These include Veterans for Medical Cannabis Access and the Veterans Cannabis Project.[24] Representative Lou Correa (D-CA) stated he plans to introduce federal legislation to direct the Department of Veterans Affairs to research whether marijuana is a safe treatment for PTSD and other battlefield related-injuries.[25] Representative Correa sits on the House Veterans’ Affairs Committee.

In September 2018 a bill was introduced in Congress to legalize medical marijuana for veterans.[26] Known as the Veterans Medical Marijuana Safe Harbor Act, the bill was unable to move forward.[27] VA leadership has said it needs authorization from Congress to conduct research into medical marijuana.[28] The Senate previously voted to support language to allow veterans to participate in state-level medical marijuana programs, but these proposals have not been enacted into law.[29] A draft bill to support VA research into medical marijuana became the first marijuana reform bill to clear congressional committee in May 2018.[30]

It is clear VA will not embrace medical marijuana prior to federal rescheduling, FDA approval, and/or action by Congress. Opponents point out the lack of scientific research as the biggest obstacle to the reclassification of marijuana on the federal schedule of controlled substances. In May 2019 the VA stated it opposes legislation encouraging medical cannabis research as long as it remains illegal under federal law.[31]

Several New Jersey veterans are leading efforts to reform marijuana laws in the Garden State. Scott Rudder is the President of the New Jersey Cannabusiness Association and previously served in the New Jersey National Guard.[32] Leo Bridgewater served multiple tours in Iraq and Afghanistan. Mr. Bridgewater testified before the New Jersey Assembly in favor of including PTSD as a qualifying condition medical marijuana.[33] Mr. Bridgewater also serves as National Director of Veteran Outreach for Minorities for Medical Marijuana.[34] New Jersey native and Navy veteran Matt Bellina successfully led the effort to pass federal “Right to Try” legislation for terminally ill patients.[35] (Right to Try only includes medicines which have passed an FDA Phase 1 trial.)

New Jersey’s medical marijuana program offers a discounted registration fee for veterans. In response to Governor’s Executive Order No. 6, the State of New Jersey Department of Health lowered the fee to $20 for veterans and senior citizens. If federal legislation is passed allowing veterans access to medical marijuana, experts expect a sharp jump in enrollment in New Jersey’s program.[36] New Jersey’s proposed legalization bill envisions set-asides to ensure at least 15% of licenses go to disabled veterans. (S2703/A New Jersey Cannabis Regulatory and Expungement Aid Modernization Act).

Conclusion

Veterans are more likely to suffer from chronic health problems than other Americans.[37] Many of these health problems may be difficult or dangerous to treat with traditional medicine including opiates and other pharmaceuticals. Although many veterans feel PTSD and other widespread veteran’s health issues could be better treated with medical marijuana, much more scientific research is required. Because many veterans rely on the VA for healthcare they encounter some of the greatest disincentives to participate in state-level medical marijuana programs. Veterans remain caught in the middle ground between states expanding medical marijuana programs and the regulatory inertia of the federal government.[38]

VHA providers and/or pharmacists discuss with the Veteran marijuana use, due to its clinical relevance to patient care, and discuss marijuana use with any Veterans requesting information about marijuana;

To comply with Federal laws such as the Controlled Substances Act (Title 21 United States Code (U.S.C.) 801 et. al.), VHA providers are prohibited from completing forms or registering Veterans for participation in a State approved marijuana program; and,

VHA providers and/or pharmacists should discuss with patients how their use of State-approved medical marijuana to treat medical or psychiatric symptoms or conditions may relate to the Veterans participation in other clinical activities, (e.g., discuss how marijuana may impact other aspects of the overall care of the Veteran such as how marijuana may interact with other medications the Veteran is taking, or how the use of marijuana may impact other aspects of the overall care of the Veteran such as pain management, Post-Traumatic Stress Disorder (PTSD), or substance use disorder treatment).” Id.

“4.g.(6). If a Veteran reports marijuana use and/or participation in a State-approved marijuana program to a member of the clinical staff, that information is entered into the “non-VA/herbal/Over the Counter (OTC) medication section” of the Veteran’s electronic medical record following established procedures for recording non-VA medication use (see VHA Directive 2011-012, Medication Reconciliation, or subsequent policy document, VHA Directive 1108.08, VHA Formulary Management Process). If a provider discusses marijuana with a Veteran, relevant information must be documented in progress notes, and considered in the development or modification of the treatment plan.” Id.

[12] “Each VA medical facility Director, or designee, is responsible for ensuring VA facility staff are aware of the following:

(1) Clinical staff may discuss with Veterans relevant clinical information regarding marijuana and when this is discussed it must be documented in the Veteran’s medical record. Veterans must not be denied VHA services solely because they are participating in State-approved marijuana programs. Providers need to make decisions to modify treatment plans based on marijuana use on a case-by-case basis, such decisions need to be made in partnership with the Veteran and must be based on concerns regarding Veteran health and safety.

(2) The prohibition on recommending, making referrals to or completing forms and registering Veterans for participation in State-approved marijuana programs.” Id.

[20] UCMJ Article 912.a also applies to; (2) Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article. (3) Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is listed in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

[35] Jo Ciavaglia, Matt Bellina is the face of the “Have A Heart” Foundation’s fight for the Right to Try and raising Funds for ALS Research for a Cure! Have a Heart NAC Foundation, https://myrighttotrynow.com/2017/08/matt-bellina-the-face-of-right-to-try/.

[38] Many thanks to Professor McNichol for his invaluable feedback during previous drafts of this paper. This paper is meant to be only a general overview of legal issues facing veterans and members of the military in states with medical marijuana programs.

There are numerous other detailed issues on this subject worthy of scholarship and research, but these are outside the scope of this assignment. Some of these topics include; detailed analysis of recent scientific research, veteran’s access to CBD, restrictions on Second Amendment rights pursuant to participation in medical marijuana programs (roughly 50% of veterans are gun-owners), Drug-Free Workplace laws, the various competing proposals for reform at the federal level, military rules of civil procedure and evidence, marijuana use and security clearances, waiver requirements regarding enlistment and past marijuana-use, and the declining representation of veterans in Congress.

]]>On the Omission of the Term “Expressly” from the Tenth Amendmenthttp://tenthamendmentcenter.com/2019/07/16/on-the-omission-of-the-term-expressly-from-the-tenth-amendment/
Tue, 16 Jul 2019 12:39:28 +0000http://tenthamendmentcenter.com/?p=28592Marshall's point in McCulloch about the omitted word "expressly" is probably one of the most commonly made claims about the original understanding of Tenth Amendment. It is also almost certainly wrong. ]]>

In his recent review of Lawrence Lessig’s new book, “Fidelity and Constraint,” Georgetown law professor John Mikhail takes issue with Lessig’s account of the New Deal. Mikhail rejects Lessig’s implied suggestion that the New Deal Court departed from the original meaning of the Constitution in general and the Tenth Amendment in particular.

Instead, Mikhail insists that New Deal cases like United States v. Darby restored the original minimalist understanding of the Tenth Amendment—an understanding originally presented by Chief Justice John Marshall in McCulloch v. Maryland. In McCulloch, Marshall pointed out that, although the Articles of Confederation limited the federal government to “expressly” delegated powers, the drafters of the Tenth Amendment omitted the word “expressly.”

The drafters’ omission, Marshall insisted, was the key to properly understanding both the original delegations of power in Article I and the original meaning of the Tenth Amendment. In his review of Lessig’s book, Mikhail argues that the New Deal Court in Darby was right to restore Marshall’s minimalist understanding of the Tenth Amendment, and Mikhail specifically relies on Marshall’s argument about the omitted word “expressly” in support of his claim that “Darby is more faithful to the original Constitution than Hammer [v. Dagenhart].”

Repeated in every first-year law school course on Constitutional Law, Marshall’s point in McCulloch about the omitted word “expressly” is probably one of the most commonly made claims about the original understanding of Tenth Amendment. It is also almost certainly wrong. The omission of the word “expressly” from the Tenth Amendment tells us nothing about whether the ratifying public understood the original Constitution as communicating the principle of expressly enumerated powers, nor does the omission tell us whether the public that ratified the Bill of Rights continued to hold this view.

As I have written previously, even before the addition of the Bill of Rights, advocates of the new Constitution insisted that Congress had only expressly enumerated powers. According to James Madison, the addition of the Ninth and Tenth Amendments merely confirmed the preexisting principle of expressly delegated power.

During the early decades of the Constitution, judges and commentators regularly inserted into their description of the Tenth Amendment the very word John Marshall insisted had been intentionally left out. These statements took place during and immediately after ratification and were voiced by a broad range of figures directly involved in the effort to ratify the Constitution.

For example, throughout the ratification debates Federalist proponents of the Constitution insisted that Congress would have only expressly delegated powers. In the New York ratifying convention, Alexander Hamilton declared that “whatever is not expressly given to the federal head, is reserved to the members.”

In the South Carolina debates, Federalist Charles Pinckney insisted that “no powers could be executed or assumed [by the federal government], but such as were expressly delegated.” In a speech delivered to the House of Representatives while the Bill of Rights remained pending in the states, James Madison reminded the assembly that the proponents of the Constitution had assured the states that “the general government could not exceed the expressly delegated powers.”

Speaking shortly after the adoption of the Bill of Rights, Madison again declared that “[w]hen the people have formed a Constitution, they retain those rights which they have not expressly delegated.” According to Representative John Page, a member of the First Congress that drafted and debated the Bill of Rights, the combined effect of the Ninth and Tenth Amendments rendered the Tenth as if it had in fact included the term “expressly.”

Finally, in one of the most famous decisions of the Supreme Court’s first decade, Calder v. Bull, Justice Samuel Chase declared that “the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not EXPRESSLY taken away by the Constitution of the United States.” (emphasis in opinion)

These are just a few examples that can be found easily in the historical record. There are many others. They arise in every major period of American constitutional law, from the Founding, to the Reconstruction era, to the Lochner era, and right up to the modern Supreme Court. (See Kurt Lash, The Original Meaning of an Omission, 83 Notre Dame L. Rev. 1889, 1891-93 (2008).

The Founders who insisted that Congress had but expressly delegated powers understood and accepted the general principle of implied powers. They repeatedly noted that expressly delegated powers impliedly authorized those means “clearly” necessary for accomplishing the enumerated ends. Implied powers, however, were limited to those means closely associated with the original express delegation. Put another way, implied powers must be “necessary and proper.”

Marshall, of course, rejected such a restricted understanding of the implied powers of Congress. In McCulloch, Marshall used an original intent argument regarding the omitted term “expressly” to support his broad understanding of both implied powers and the Necessary and Proper Clause (so did Marshall’s protégé, Joseph Story).

Neither Marshall nor Story, however, were successful in vanquishing the idea that Congress enjoyed only expressly delegated powers. In Lane County v. Oregon, a case decided a year after the country ratified the Fourteenth Amendment, Chief Justice Salmon Chase declared, “to them [the states] and to the people all powers not expressly delegated to the national government are reserved.”

Which brings us to Hammer v. Dagenhart—the case John Mikhail insists that Darby rightly buried. In Hammer, Justice Day declared that, “[i]n interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved.”

This is not only an obvious rebuke to Marshall’s formulation in McCulloch (“we must never forget that it is a Constitution we are expounding”), he was using the same language as Chief Justice Chase’s opinion in Lane County–language one can trace all the way back to the original ratification debates.

Whatever else might be correct about McCulloch, Marshall’s claims about the interpretative implications of the omitted term “expressly” conflict with a great deal of evidence regarding the original understanding of the original Constitution. John Mikhail’s reliance on Marshall’s “omission” argument is common, but it is no more convincing today than when Marshall first made it decades after the adoption of the original Constitution.

Lawrence Lessig is right to suggest that, by relying on their own broad understanding of Marshall’s opinions, the New Deal Court significantly departed from the originally restricted understanding of the implied powers of Congress and the original principle communicated by the Tenth Amendment.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

]]>Supreme Court Simultaneously Tramples State Sovereignty and Fourth Amendmenthttp://tenthamendmentcenter.com/2019/07/14/supreme-court-simultaneously-tramples-state-sovereignty-and-fourth-amendment/
Sun, 14 Jul 2019 11:42:04 +0000http://tenthamendmentcenter.com/?p=28579A case recently decided by the U.S. Supreme Court once again reveals the inherent danger of placing virtually unlimited authority in the federal judiciary and centralizing decision making for 50 sovereign states and over 325 million people in the hands of nine unaccountable, unelected lawyers. In Mitchell v. Wisconsin 588 U. S. ___ (2019), the […]]]>

A case recently decided by the U.S. Supreme Court once again reveals the inherent danger of placing virtually unlimited authority in the federal judiciary and centralizing decision making for 50 sovereign states and over 325 million people in the hands of nine unaccountable, unelected lawyers.

In Mitchell v. Wisconsin 588 U. S. ___ (2019), the United States Supreme Court considered what police officers can do when a person suspected of driving under the influence is unconscious and cannot be given a breath test.

A summary of the facts are as follows: In May of 2013, Gerald Mitchell’s neighbor observed him appearing intoxicated and agitated. The neighbor contacted police after Mitchell got in his van and drove away. Police located Mitchell walking near Lake Michigan, where he had taken pills and consumed vodka. His van was nearby. Mitchell was given a preliminary breath test, which indicated his blood alcohol content (BAC) was .24, three times over the legal limit.

Mitchell was transported to a police station for an additional breath test using more reliable equipment for evidentiary purposes in court. He lost consciousness en route, and officers wheeled him into the station. At that point, he was too lethargic to participate in the breath test, so he was transported to a nearby hospital. Even though he was unconscious upon arrival, officers read aloud to a slumped over Mitchell the standard statement offering him a chance to refuse the blood test. Mitchell was unable to refuse, and remained unconscious during the procedure.

At the instruction of law enforcement officials, the hospital administered the blood draw. The test took place approximately 90 minutes after his arrest. Mitchell was charged with violating two related provisions of Wisconsin’s drunk driving laws. He moved to suppress the results of the blood test as a violation of the Fourth Amendment’s prohibition against unreasonable searches, as it was conducted without a warrant, so he contacted Daniel M. Murphy, P.C. which is an expert in these sort of cases.

Wisconsin ignored the Fourth Amendment claim and instead rested on the proposition that the search was valid under the state’s implied-consent law, meaning every person driving on the state roads suspected of driving under the influence of drugs or alcohol is presumed to have consented to testing for the proscribed BAC level, whether it be via a breath or blood test.

Interestingly, the United States Supreme Court ignored the implied-consent issue, and instead focused on whether the warrantless draw on an unconscious suspect violated the Fourth Amendment, which states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The inception of the Fourth Amendment – which had little British precedent – was largely the result of the American reaction to the British writs of assistance in the 1760s. Unlike genuine search warrants, that required a much higher level of scrutiny and had to be approved by a judge, writs of assistance did not expire and did not require an itemized list of items to be seized. Under the general writs, customs officials were given complete discretionary freedom to enter private property at will. These two factors made the writs especially contemptible, rousing the indignation of those who believed that traditional liberty was rooted in the inviolability of property rights.

James Otis, the famed Massachusetts agitator that most famously articulated the treachery of such a policy in a famous legal case. Otis argued that the writs of assistance would guarantee arbitrary and despotic governmental undertakings. “Every one with this writ may be a tyrant,” he warned.

While five of the Crown’s judges decided to uphold the constitutionality of the writs, and Otis lost the case in question, he made a potent impression on compatriots that identified with the compelling force of his stance. A young John Adams was so moved by the persuasive power of Otis’ words, he wrote that “American independence was then and there born.” By all accounts, the firebrand’s condemnation of the writs left a lasting impression that wove itself into the tapestry of early American liberty.

“That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted”

In a similar manner, Massachusetts adopted a declaration of rights that required all searches to be “reasonable,” and held that “no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.” Several other states followed suit in the 1780s. By the time the First Congress mulled the Bill of Rights, such a safeguard seemed an obvious inclusion to inhibit the general government.

In the present case, the Court was presented with a criminal matter arising out of the state of Wisconsin. The appellate court sent the case to the State Supreme Court to determine if the Fourth Amendment of the United States was violated, a clear example of a state surrendering its sovereignty. Making such a claim will ultimately move the matter to the federal judiciary.

Throughout the Philadelphia Convention, James Madison pushed for a federal “negative” (veto power) over state laws. This idea was rejected on each attempt. When a number of States insisted on adding a Bill of Rights as a condition of ratification, he argued against it saying, along with Alexander Hamilton and James Wilson, among others, that it would be redundant since the “general” government had only the powers specifically enumerated.

The legislative powers of Congress are set forth in Article I, with the enumerated powers listed therein under Section 8. The Tenth Amendment asserts the following:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Here we see the United States Supreme Court sitting in judgment of how local police are handling state laws with regard to driving under the influence on state roads, which according to the Constitution as ratified, is a matter to be determined by the states, regardless of the erroneous Fourth Amendment claim.

The constitution that should control in this case is the Wisconsin State Constitution — a fact that is ignored by the federal courts, and in this case, by the state itself.

So why wasn’t this adjudicated as a matter of state law under the state constitution?

Once again, we can thank the 14th Amendment for opening the door for federal interference in matters never intended nor consented to by the states.

The Preamble to the Bill of Rights states, in relevant part, the following:

“The Conventions of a number of the States…expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.”

When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated. The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, 32 U. S. 243, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”

In delivering the opinion of the Court in Mitchell case, Justice Alito refers to two previous instances where “we have addressed…the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol.”

Again, dictating local police procedures was never a power delegated to the general government. Justice Alito is admitting that the Court has amended the Constitution.

The Constitution can be amended, and the process for doing so is set forth in Article V; Congress or the States can propose an amendment and ¾ of the States must support its ratification. Justice Alito is acknowledging that the Supreme Court can hold its own Constitutional convention without inviting the States to weigh in.

This interpretation by the Court is problematic and unhistorical.

The 39th Congress, which proposed the amendment, did not debate the issue of “incorporation,” and no such premise had been adhered to in the preceding years. But, by 1925 the Supreme Court was well on its way toward inflicting a complete rewrite of the Constitution onto the states and the American people, thus diminishing the “separation of powers” between the states and the “general” government. This made-up doctrine has served the chief mechanism through which a “one-size-fits-all” form of government, with all rights and powers emanating from Washington, D.C., has arisen.

Justification for federal review of a State issue also arises from a misapplication of the Court’s jurisdiction, namely the statement in Article III that “…judicial power (of the federal courts) shall extend to all cases…arising under this Constitution…” What is the result of this interpretation? It means that all one has to do to circumvent State policy is to call the matter a “Constitutional question,” file in federal court, and ignore the Tenth Amendment, the foundation of the Constitution, according to Thomas Jefferson.

In the present case, issues of federalism are ignored, largely due to two factors: ignorance and the emotional response to the tragic consequences of driving while intoxicated.

Alito stated the following:

“The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; BAC tests are crucial links in a chain on which vital interests hang.”

To compare the statistics of highway deaths attributable to drunk-driving to the “ravages” of war is hyperbole at best and disingenuous at worst. It is language selected to trigger the emotions and blind the eye that should be jealously guarding against an ever-expanding encroachment upon state sovereignty. Clearly, no one wants to see people killed on the highways due to drivers operating motor vehicles while impaired. But that is not an excuse to ignore the fact that the states are the proper authorities entrusted with managing this issue; further, the means by which they have entrusted law enforcement to carry out procedures is a manner to be accepted or challenged at the state level.

Supreme Court opinions have essentially gutted the warrant requirement of the Fourth Amendment. Further, the Court was mixed on whether a warrant under Mitchell’s circumstances was required at all.

Justice Thomas opined, “The better (and far simpler) way to resolve this case is to apply ‘the per se rule’ I proposed in Missouri v. McNeely, 569 U. S. 141 (2013)…Under that rule, the natural metabolization of alcohol in the bloodstream creates an exigency once police have probable cause to believe the driver is drunk, regardless of whether the driver is conscious.” (Emphasis added.)

Justices Sotomayor, Ginsburg and Kagan joined in the dissent, saying, “When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant,” Veronia v. School Dist. 47J v. Acton, 515 U. S. 646 (1995) and that “(t)he warrant requirement is not a mere formality; it ensures that necessary judgment calls are made ‘by a neutral and detached magistrate,’ not ‘by the officer engaged in the often competitive enterprise of ferreting out crime.’” Schmerber v. California, 384 U. S. 757 (1966)

If the states were left to resolves this matter on their own, – the purpose of the system Madison described as federal and not national in nature in Federalist No. 39 – people could choose under which system they prefer to live. They may choose liberty over safety and rely on the fact that a warrant is the preferred method of gathering evidence, or they may opt for the feeling of security, and know that at any time, they may be required to allow law enforcement to inject a needle into their body for the purpose of gathering evidence against them.

By surrendering such matters to the federal judiciary, we are admitting that we are incapable of governing ourselves and that the right to consent to our system of government, over which a war was fought, really doesn’t matter after all.

A recent report by the Washington Post revealing that the federal government has turned state drivers’ license photos into a giant facial recognition database, putting virtually every driver in America in a perpetual electronic police lineup, generated widespread outrage. But this story isn’t new. The federal government has been developing a massive biometric database in cooperation with state and local governments for years.

According to information obtained by Georgetown Law’s Center on Privacy and Technology and reported by the Post, the FBI and ICE have turned state DMV databases into the “bedrock of an unprecedented surveillance infrastructure.” The feds have done this with no authorization and virtually no oversight. As Rep. Jim Jordan (R-Ohio) put it during a House Oversight Committee meeting, “They’ve just given access to that to the FBI. No individual signed off on that when they renewed their driver’s license, got their driver’s licenses. They didn’t sign any waiver saying, ‘Oh, it’s okay to turn my information, my photo, over to the FBI.’ No elected officials voted for that to happen.”

Members of Congress from both sides of the aisle joined Jordan in condemning the practice. But that fact is we knew about this years ago. None of these congressional “leaders” have lifted a finger to stop it. And the feigned outrage of Jordan and others on Capitol Hill notwithstanding, they likely never will.

The use of DMV databases in facial recognition surveillance makes up part of a broader movement to create a national biometric surveillance network. State, local and federal cooperation – along with information-sharing – makes the entire system tick.

The Center on Privacy and Technology released a report on the growing use of facial recognition called Perpetual Lineup back in 2016. There was an outburst of outrage then as well. But three years later, nothing has changed. In fact, the federal surveillance state has only expanded.

At the time of the 2016 Perpetual Lineup report, law enforcement face recognition networks included photos of more than 117 million adults. Many of the pictures enter the system when police take mugshots during booking after an arrest, but police increasingly have access to photos of innocent people. As of 2016, at least 16 states had allowed the FBI to access their driver’s license and ID photos.

The Perpetual Lineup report said the policy was even more widespread. As of 2016, at least a quarter of all U.S. law enforcement agencies had access to face recognition databases. According to the report, “at least 26 states (and potentially as many as 30) allow law enforcement to run or request searches against their databases of driver’s license and ID photos. Roughly one in two American adults has their photos searched this way.”

The FBI maintains the largest facial recognition system in the country. Known as Next Generation Identification Interstate Photo System (NGI-IPS), it contains some 25 million state and federal criminal photos, mostly mugshots shared by state and local law enforcement agencies. Photos remain in the system even if a court never convicts the individual of a crime. It remains unclear what other types of photos end up in NGI-IPS. The FBI face recognition unit (FACE Services), along with police in seven states (as of 2016), can run photos against the FBI database

The FBI’s FACE Services not only runs facial recognition searches against its own database; it can also access a massive network of databases – including many state DMVs. As of 2016, it included 411.9 million photos. Last month the GAO director said the system now has access to more than 641 million face photos. In other words, the system has added some 229 photos in just three years.

The Washington Post report describes just how easy it is for federal agents to tap into state DMV systems.

“While some of the driver photo searches were made on the strength of federal subpoenas or court orders, many requests for searches involved nothing more than an email to a DMV office with the target’s “probe photo” attached. The official would then search the driver’s license database and provide details of any possible matches. The search capability was offered not just to help identify criminal suspects, but also to detect possible witnesses, victims, bodies, and innocent bystanders and other people not charged with crimes.”

With facial recognition technology, police and other government officials can not only identify people in photographs or video footage; they also have the capability to track individuals in real time. These systems allow law enforcement agents to use video cameras and continually scan everybody who walks by. According to the report, several major police departments have expressed an interest in this type of real-time tracking. Documents revealed agencies in at least five major cities, including Los Angeles, either claimed to run real-time face recognition off of street cameras, bought technology with the capability, or expressed a written interest in buying it.

In 2013, the Los Angeles Police Department announced the installation of 16 new surveillance cameras in “undisclosed locations” across the San Fernando Valley. The cameras were mobile, wireless, and programmed to support face recognition “at distances of up to 600 feet.” LA Weekly reported that they fed into the LAPD’s Real-time Analysis and Critical Response Center, which would scan the faces in the feed against “hot lists” of wanted criminals or “documented” gang members. It appears that every person who walks by those cameras has her face searched in this way.

The implementation of the unconstitutional Real ID Act has helped facilitate the creation of the national surveillance database. Provisions in the act require every state to use standardized digital photographs on their driver’s licenses that can be easily read by facial recognition technology.

George Orwell’s Big Brother would have drooled over the all-encompassing surveillance system quietly under construction in the United States. Facial recognition technology linked to federal, state and local databases can track your every move just by pointing a camera at your face. It effectively turns each of us into a suspect standing in a perpetual lineup. The reported unreliability of facial recognition technology, especially when it comes to reading the features of ethnic minorities, makes this even more concerning.

Police operate these face recognition systems with little oversight and oftentimes in complete secrecy. For example, Ohio’s system remained almost completely unknown to the public for five years.

With their rapid proliferation, the potential for abuse and the threat to basic privacy rights posed by facial recognition surveillance, state and local governments need to make oversight and placing limits on law enforcement use of facial recognition a top priority. At the least, law enforcement agencies should be required to get local government approval in a public meeting before obtaining facial recognition technology. The TAC’s Local Ordinance to Limit Surveillance Technology covers this.

Despite the howls of outrage you hear from Capitol Hill, Congress won’t end facial recognition, or the surveillance state more broadly. They will only expand it. State and local action is the only hope to stop the expansion of the federal surveillance state.

]]>Patrick Henry: “If This Be Treason!”http://tenthamendmentcenter.com/2019/07/10/patrick-henry-if-this-be-treason/
Wed, 10 Jul 2019 12:22:45 +0000http://tenthamendmentcenter.com/?p=28493His gift for oratory had, only 11 days after he took the oath of office for a Burgess, guaranteed his place in the front of the minds of patriots from Massachusetts to Georgia.]]>

There was a time in our history when one of our finest patriot fathers is said to have waved the saber of “treason” in the face of the world’s most powerful monarch. In return, his fellow Burgesses exclaimed that the patriot was committing treason. That brave (some would say, given the circumstances, reckless) man was the incomparable Patrick Henry.

The silver-tongued orator was never at a loss for words, and he spoke with a ready arsenal of logic. Biographer William Wirt said of him in 1817, “Tis true he could talk — Gods how he could talk!” Lord Byron called him the “forest-born Demosthenes.”

The event that evoked the cries of “treason, treason” — and that more than any other guaranteed Patrick Henry’s place in the pantheon of American heroes, even more so than his famous “Give me liberty, or give me death” speech a decade later — was his key role in opposing the Stamp Act that played out in the Virginia House of Burgesses in 1765.

The Stamp Act

In March of 1764, Parliament expressed its intention to impose a direct tax on the colonies by requiring that important documents be printed on “stamped” paper. News of the proposed taxes reached Virginia in the summer of 1764. The Assembly was not then in session and would not be until October 30. Although the Assembly was in recess, the Committee of Correspondence ordered Virginia’s agent in England to oppose passage of such resolutions. On November 30, 1764, a special committee of the House of Burgesses reported a draft of an official response to be sent to the King and Parliament. On December 14 of the same year, the following resolutions were adopted:

1. That an address be sent to the king asking his protection in their natural and civil rights, “Which Rights must be violated if Laws, respecting the internal Government, and Taxation of themselves, are imposed upon them by any other Power than that derived from their own Consent, by and with the Approbation of their Sovereign, or his Substitute,” and stating that as a people they had been loyal and zealous in meeting the expenses of defense of America, and that they would be willing to meet their proportion of any necessary expense for the defense of America, “as far as the Circumstances of the People, already distressed with Taxes, would admit of, provided it were left to themselves to raise it, by modes least grievous.”

2. That a memorial be sent to the House of Lords asking them as hereditary guardians of British liberty and property, “not to suffer the People of this Colony to be enslaved or oppressed by Laws respecting their internal Polity, and Taxes imposed on them in a Manner that is unconstitutional.”

3. That a remonstrance be sent to the House of Commons “to assert, with decent Freedom, the Rights and Liberties of the People of this colony as British Subjects; to remonstrate that Laws for their internal Government, or Taxation, ought not to be imposed by any Power but what is delegated to their Representatives, chosen by themselves;” and to suggest that England’s proposed policy might force the Virginians to manufacture the things they now buy from England.

4. That the Committee of Correspondence answer the letter from Massachusetts, assuring that colony that the Virginia Assembly is alive to the danger to the right of self-taxation, “and that the Assembly here will omit no Measure in their Power to prevent such essential Injury from being done to the Rights and Liberties of the People.”

Despite the protests by Virginia and other colonies, Parliament passed the Stamp Act on March 22, 1765, to go into effect in the colonies beginning November 1 of that year. News of the Act’s passage reached Virginia in April 1765, but the sparks really didn’t begin flying until May, when a young, newly elected member from the county of Louisa took the ancient oath of office and set out to use all his talents to fight this latest example of British tyranny. That brash young firebrand was, of course, Patrick Henry.

According to the official Journal of the House of Burgesses, Patrick Henry took his seat on May 20, 1765. He had already achieved a modicum of notoriety thanks to his zealous advocacy on the part of Nathaniel Dandridge in the Dandridge-Littlepage contested election and to his participation in the case that came to be known as the Parson’s Cause. There is some question as to how Patrick Henry was able to be elected to the august representative body of the Old Dominion at such a young age (he was 28 at the time), but there is little question as to the impact he had on that group of men from the first days of his term in it.

On May 29, the day of his 29th birthday, Patrick Henry offered five resolutions for consideration by the House of Burgesses. Henry, in fact, offered the resolutions to the Committee of the Whole House. The House had gone into this Committee of the Whole after a motion to that effect was made by George Johnston, a member from the county of Fairfax, and seconded by Henry himself. Johnston is an important member of the dramatis personae of the drama that surrounds the Stamp Act resolutions. Sometime before offering his resolutions to the House, Patrick Henry shared them with both Johnston and John Fleming, a Burgess from Cumberland, both of whom pledged their support to Henry and to the passage of his resolutions.

In consultation with Fleming and Johnston, Henry had decided to offer not five but seven resolutions in response to the Stamp Act. Henry moved for the adoption of the seven resolutions by the Committee of the Whole, the motion was seconded by Johnston, and debate ensued.

The debate was heated and illuminated a fracture in the House between conservative Tidewater aristocrats and the more liberal and independent-minded Piedmont and backwoods representatives, of which Patrick Henry was one. Apparently, all seven amendments were finally approved by the committee and recommended to the whole House for final consideration and vote.

These seven resolutions were passed by the Committee of the Whole and sent to the House on May 30. Before any action could be taken by the whole body of the House, however, the seven resolutions were passed on to the colonial newspapers and by July were printed with various alterations as official resolutions of the Virginia House of Burgesses.

May 30 and 31 of 1765 were days of vigorous debate in the House of Burgesses. Although only 39 of the approximately 115 Burgesses were present for the debates and votes, Henry’s proposals polarized the members of the House. The older, more conservative members opposed Henry’s resolutions on the grounds that the action taken the previous year by the House of Burgesses sufficiently responded to the Stamp Act, especially in light of the fact that Parliament had yet to answer those earlier resolutions. Younger members, including Henry, argued that the taxes required under the Act would take effect in a few months and immediate action was necessary. The resolutions were debated vociferously, and on May 30 only the first five of the seven were approved, albeit by small margins, especially the fifth, which apparently passed by the narrowest of margins — a single vote. It was during the debate on this fifth and most contentious of the first five resolutions that Patrick Henry spoke words that have been passed into the lore of the early days of American discontent with English rule.

Patrick Henry rose to speak in support of his fifth resolution. Biographer William Wirt describes his stirring remarks as well as the reaction of offended Burgesses:

It was in the midst of this magnificent debate, while he was descanting on the tyranny of the obnoxious Act, that he exclaimed, in a voice of thunder, and with the look of a god, “Caesar had his Brutus — Charles the first, his Cromwell — and George the third — ” (“Treason,” cried the Speaker — “treason, treason,” echoed from every part of the House. — It was one of those trying moments which is decisive of character. — Henry faltered not an instant; but rising to a loftier attitude, and fixing on the Speaker an eye of the most determined fire, he finished his sentence with the firmest emphasis) “may profit by their example. If this be treason, make the most of it.”

Working on the Wording

Unfortunately, an actual text of Henry’s remarks does not exist — and did not exist for Wirt when he penned the above account in 1817, more than half a century after the speech was given. Yet despite the passage of time, Wirt tried to unearth the elusive truth from the scant evidence available, and his description of the speech has become a calcified part of the lore of colonial America and its great struggle for freedom and independence.

Wirt relied on accounts of the speech provided him by Thomas Jefferson, John Tyler, and Paul Carrington. Two of these, Jefferson and Tyler, purportedly sat outside the door of the House chamber while Henry and the other Burgesses debated the Stamp Act resolutions. The chief problem with all of these recollections is that they all were written many years (approximately 50 years) after the fact. Let’s examine these three briefly:

• First is the account provided by Paul Carrington, who was a contemporary member of the House of Burgesses. However, at the time Henry delivered his Stamp Act speech, Carrington had not taken his seat and therefore was not an eyewitness. Carrington provided the basis of the account of the speech described by Wirt. He informs Wirt that Henry had actually said the words, “if this be treason, make the most of it.” It is significant to remember that Carrington sent this account to Wirt in 1815, long after Henry’s reputation as a fiery patriotic orator had passed beyond the realm of debate.

• The second account is from Thomas Jefferson. Jefferson claimed to have been standing outside the door of the chamber of the House of Burgesses with John Tyler and gave the following account to Wirt: “I well remember the cry of treason, the pause of Mr. Henry at the name of George III, and the presence of mind with which he closed the sentence and baffled the charge vociferated.” This doesn’t exactly correspond with Carrington’s account, although it does not contradict it, either.

• Finally, we consider the account of John Tyler. John Tyler reportedly confirmed to Wirt the version of the story provided by Carrington, including the potent ending. Jefferson, it should be noted, was confirming the account of Tyler provided him by Wirt. It seems, therefore, that Carrington’s version of events is the common ancestor of all these accounts and the source of Wirt’s nearly mythological description of the events.

The three accounts of the event told or sent to Wirt come from men of untainted reputation. Jefferson was the President of the United States and a political enemy of Patrick Henry who would have no motive for adding air to the inflation of Henry’s popular image. Carrington was a lawyer and judge who put great stock in the precision of testimony. Tyler, a future governor of Virginia, benefited from nearly universal respect among his contemporaries. Certainly, he had no obvious reason to invent the scenario he reported nor to put words in Patrick Henry’s mouth.

While we may never know for sure what Patrick Henry said, we do know that at the end of the speech, a final, binding vote was taken by the House. As stated above, the first five of the seven resolutions passed, the fifth only barely. By this time, the narrowness of the resolutions’ passage was inconsequential, as their author had already become the voice of American resistance to English despotism.

Content with the passage of his resolutions, Henry left for home, convinced he had accomplished a great work. On May 31, the day after Henry delivered his speech and rode out of Williamsburg, the House reconsidered the resolutions and the fifth and least popular of them was rescinded, leaving only the first four as officially adopted resolutions of the Virginia House of Burgesses. The fifth resolution, the one rescinded by, as Jefferson called them, “the more timid” members of the House, was the one that read:

Resolved, Therefore that the General Assembly of this colony have the only and sole exclusive right and power to lay taxes and impositions upon the inhabitants of this colony and that every attempt to vest such power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest tendency to destroy British as well as American freedom.

Patrick Henry’s fame was beyond rescission, however, and the four resolutions he penned and helped pass were quickly and thoroughly disseminated throughout America. They became the basis for similar responses in the other colonies. Patrick Henry’s gift for oratory had, only 11 days after he took the oath of office for a Burgess, guaranteed his place in the front of the minds of patriots from Massachusetts to Georgia.

]]>Rattling Cages in the Propaganda Warhttp://tenthamendmentcenter.com/2019/07/08/rattling-cages-in-the-propaganda-war/
Mon, 08 Jul 2019 15:02:45 +0000http://tenthamendmentcenter.com/?p=28564It appears I have rattled some cages. I recently appeared on RT to talk about how the United States weaponizes the dollar and wields it like a billy club to advance U.S. foreign policy objectives. I specifically mentioned how the U.S. can use the dollar-denominated SWIFT payment system as a tool and the threat that […]]]>

It appears I have rattled some cages.

I recently appeared on RT to talk about how the United States weaponizes the dollar and wields it like a billy club to advance U.S. foreign policy objectives. I specifically mentioned how the U.S. can use the dollar-denominated SWIFT payment system as a tool and the threat that this kind of economic warfare poses to the U.S. domestic economy.

A couple of days after the interview, I got a somewhat contentious email from Voice of America asking for my comment because they are “fact-checking” the web story RT published based on my interview. VoA is a U.S. government-funded and operated media outlet.

The fact-checking arm of VoA (polygraph.info), asked if RT quoted me accurately. (They did.) The Polygraph reporter then stated, “We suspected there might be some inaccuracy because any expert on SWIFT would surely know that while the US has sought to influence it, it is primarily a European and European-based institution, which would of course limit the US’ ability to ‘use’ it as a weapon as the article states.”

SWIFT stands for the Society for Worldwide Interbank Financial Telecommunication. The system enables financial institutions to send and receive information about financial transactions in a secure, standardized environment. Since the dollar serves as the world reserve currency, SWIFT facilitates the international dollar system.

SWIFT and dollar dominance give the U.S. a great deal of leverage over other countries.

I didn’t respond to the Polygraph request because it’s clear that I am going to be cast in a bad light and my statements questioned. And I can tell you before they publish their article at least one fact they will present. They will tell you, “A U.S Treasury Department official confirmed to Polygraph.info that the U.S. does not control who SWIFT removes from its system.”

I know VoA will say this because it already has. I pulled that line from a 2017 VoA fact-check on a story relating to SWIFT locking a Russian bank out of the payment system.

It is undeniable that SWIFT has been used to support U.S. economic sanctions. A March 2019 article by Reuters reported on plans by Russian banks to “retain at least short-term access to the global financial system in the event that they are hit by fresh U.S. sanctions.”

“The two biggest threats to the banking sector in Russia are being cut off from the SWIFT banking messaging system and losing access to foreign currency, which they usually get from U.S. banks via correspondent accounts.”

A Bloomberg article in November 2018 reported on SWIFT blocking access to Iranian banks and the fear that the same policy could be used against other countries. Bloomberg cites SWIFT officials indicating that the U.S. government put pressure on the payment system.

“The U.S. has ramped up sanctions targeting Iran’s energy and banking sectors as part of the Trump administration’s ‘maximum pressure’ campaign against the Islamic Republic. Swift has said its move is in the interest of keeping the global financial system stable after senior U.S. officials said that it could be penalized if it authorizes payments between sanctioned entities.” [Emphasis added]

“We have advised SWIFT that it must disconnect any Iranian financial institutions that we designate as soon as technologically feasible to avoid sanctions exposure.”

So, despite what VoA and the Treasury Department claim, the U.S. government clearly pressures SWIFT to serve as a foreign policy tool. It may be technically accurate to say the U.S. government does not “control” SWIFT. But the U.S. clearly applies political pressure on the institution and that pressure yields results. There is enough worry about this in other countries, including Russia and China, that there are verifiable and concerted efforts to find alternative outside of the dollar-denominated system.

The Treasury Department’s statement to VoA about its control over SWIFT feels a little like claims of Federal Reserve “independence” we get from government officials and central bankers pretending the Fed operates outside and above any kind of political pressure or influence. We all know that’s utter bullshit.

What about this assertion that SWIFT is primarily a European and European-based institution and that shields it from any kind of U.S. influence?

It is true that the Belgium-based organization operates under EU law. But as the Eurasia Review article points out, SWIFT’s board includes executives from U.S. banks subject to U.S. laws, “allowing the administration to act against banks and regulators across the globe.”

“Washington’s pressure has pushed Brussels to look at creating a SWIFT alternative. In August, German Foreign Minister Heiko Maas called on the European Union to set up an independent equivalent of the system.”

If the EU maintained significant control over the SWIFT system, why did it feel the need to create a payment alternative to SWIFT in order to bypass U.S. sanctions on Iran? Why didn’t the EU assert its influence on this “European-based” institution and insist that it allow transactions with Iran to continue unhindered?

The new payment system called INSTEX (Instrument in Support of Trade Exchanges) will allow France, Britain and Germany, along with other EU nations, to continue trade with Iran outside of the dollar-based SWIFT payment system. When EU foreign policy chief Federica Mogherini announced the plan, she said the new payment channel would allow companies to preserve oil and other business deals with Iran despite U.S. sanctions.

The creation of an EU alternative to SWIFT gives you a pretty strong indication about who holds the biggest sway over SWIFT.

RT receives funding from the Russian government and there’s no question it has an editorial bias slanted toward Russian interests. But every major media organization has its bias. If you don’t think U.S. corporate media like Fox News, CNN and the New York Times have an agenda heavily influenced by U.S. “interests,” you live in a fantasyland.

The fact the VoA feels the need to “fact-check” the RT article based on my interview indicates that I have stumbled over a narrative the U.S. government doesn’t want getting into the mainstream. That doesn’t make the narrative untrue.

The fact is the U.S. uses the dollar as a foreign policy weapon. End of story.

Not only that, debt monetization by the Federal Reserve makes American interventionist wars possible. U.S. wars since 2001 have cost each American taxpayer $23,000. if they had actually had to write a $1352.94 check to the Pentagon every year for the last 17 years, the foreign wars would have ended long ago. Thanks to the Fed, they don’t have to.

This economics of war and intervention undermine the U.S. economy and makes it vulnerable. The U.S. government has already run up more than $22 trillion in debt and counting. There is a limit to the amount of debt it can take on, and the central bank’s ability to effectively print money. At some point, the economic house of cards will collapse.

You may think the intervention and aggressive U.S. foreign policy is necessary. Regardless, you need to count the cost. But the government doesn’t even want you to know a cost exists.

]]>State Governments and the People’s Libertyhttp://tenthamendmentcenter.com/2019/07/05/state-governments-and-the-peoples-liberty/
Fri, 05 Jul 2019 17:54:19 +0000http://tenthamendmentcenter.com/?p=28525Many people today seem to think it’s the federal government’s job to protect their liberty. But the Founding Fathers didn’t. In fact, they feared the new government would become too powerful and trample individual liberty. They had a healthy distrust of centralized authority and expected the states to step up and hold the federal government […]]]>

Many people today seem to think it’s the federal government’s job to protect their liberty. But the Founding Fathers didn’t.

In fact, they feared the new government would become too powerful and trample individual liberty. They had a healthy distrust of centralized authority and expected the states to step up and hold the federal government in check.

Unfortunately, the states aren’t doing their jobs.

Last week I was having a conversation with an Ohio State Representative. As is the case with most of my conversations with state politicians, the topic turned to nullification. I got the predictable three responses from the rep. First, “If we do that, then the feds will cut off the money.” Second, “No state is nullifying.” And last, I got the knowing “smile,” the smile that says, “You don’t understand how politics really work, leave it all to me.”

Well, my response has become predictable too.

First, I ask if they even know what nullification is. And then I asked if they have ever heard of the anti-commandeering doctrine and if they know what the founding fathers said about the role of the states when the federal government oversteps its constitutional boundaries?

They still give me the “smile,” but it’s never quite as wide now as it was.

Let’s tackle my questions to the legislators one at a time.

First, let’s clarify something; what does it mean when a state “nullifies” something?

It simply means “We refuse to do it.”

That’s it in just five words.

As James Madison put it in Federalist #46, we are talking about “a refusal to cooperate with officers of the union.” The states simply refuse to use their resources, i.e. manpower, time, and money to put into effect an unconstitutional federal law or regulation. The founders made it very clear in their writings that it was the state’s obligation and duty to oppose unconstitutional federal law.

When it comes to the state’s role, I think we all need reminding from time to time about what the Founder’s actually said:

“ … Besides this security [Bill of Rights], there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty…” ~ James Madison Introduction to the Bill of Rights, June 1789

“ … But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, … it will be upon thirteen legislatures, … having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation… “ ~ Theophilus Parsons, Massachusetts Ratifying Convention 1788

“…It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…” ~ Alexander Hamilton Federalist #28

“If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.” ~Alexander Hamilton, Federalist #16

“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” ~Thomas Jefferson, Kentucky Resolutions, 1798

“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.” ~James Madison, Federalist #46

Don’t amend the Constitution. Don’t sue the federal government in federal courts. The states are supposed to protect us by NULLIFYING unconstitutional federal laws by refusing to enforce them.

Next, let’s discuss the Anti-Commandeering doctrine.

What is it?

The basis for this doctrine was the advice of James Madison. Writing in Federalist #46, he advised four primary tactics for individuals and States to effectively push back against federal overreach, including a “refusal to cooperate with officers of the Union.”

Going back over 177 years the Supreme Court has said that States do not have to use their manpower or money to enforce federal law or any regulatory programs.

Prigg v. Pennsylvania (1842) – The Federal Govt. could not force States to enforce the Fugitive Slave Act of 1793. ~Chief-Justice Joseph Story

New York v. United States (1992) – The Federal Govt. cannot “commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program ~ Justice Sandra Day O’Connor

Printz v. United States (1997) – Federal Govt. can neither direct the States to address Federal problems or command the States’ officers or political sub-divisions to administer or enforce a federal regulatory program. ~ Justice Anthony Scalia

N.F.I.B v. Sebelius (2012) – “The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ ~Chief-Justice John Roberts

Murphy v. NCAA (2018) – The Court held that Congress can’t take any action that “dictates what a State legislature may and may not do” even when the State action conflicts with federal law, “a more direct affront to State sovereignty is not easy to imagine.” ~Justice Samuel Alito
No States are nullifying. This one is easy to dispense with. Right now there are 34 States nullifying federal drug laws by legalizing marijuana for either medical use, recreational use or both.

Lastly, let’s talk about the biggest worry for most State legislators, the M-O-N-E-Y. That’s always the first thing a legislator brings up: if we nullify something, they will cut off the money.

I say to them, if you aren’t using state resources to enforce an unconstitutional law or regulation, i.e., not spending any money on them, then it doesn’t matter if they cut off that money, does it? They can’t cut off money for programs states are running, just for the ones they aren’t.

You can tell by reading the words of the Founders that they expected the state governments to jealously guard against the federal government encroaching on powers that rightfully belonged to the states.

“…and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty…” ~ James Madison Introduction to the Bill of Right, June 1789

The problem with Nullification is that it is misunderstood by most people or not even known about by the rest.

It is up to us, the people, to see to it that our state legislators know about nullification and that we expect them to use it to start reining in a federal government that is out of control.

]]>The Declaration of Independence Birthed 13 Sovereign Nationshttp://tenthamendmentcenter.com/2019/07/03/the-declaration-of-independence-birthed-13-sovereign-nations/
Wed, 03 Jul 2019 16:36:48 +0000http://tenthamendmentcenter.com/?p=28558On July 4, people all across these United States of America will shoot off fireworks, grill meat and march in patriotic parades to celebrate the “birth of a nation.” But that’s not at all what happened on July 4, 1776. A singular “nation” was not born. In fact, that date marked the birth of 13 […]]]>

On July 4, people all across these United States of America will shoot off fireworks, grill meat and march in patriotic parades to celebrate the “birth of a nation.” But that’s not at all what happened on July 4, 1776. A singular “nation” was not born. In fact, that date marked the birth of 13 sovereign independent nations, as the Declaration of Independence makes clear.

Most Americans are familiar with the Declaration of Independence – or at least the first few paragraphs. Students learn many of the opening lines in school.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

In the first several paragraphs of the Declaration, Thomas Jefferson laid out important foundational principles. After establishing the source of our rights, he asserted that governments derive their “just powers from the consent of the governed.”

He also declared that “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Indeed, the Declaration of Independence is a secession document.

Most people don’t read past these fundamental principles. They set the document aside once they get to the list of grievances against England. But by failing to read to the end, they miss the key truth of the Declaration. It’s a little like eating your side-dish and leaving the main course.

Because while the principles Jefferson articulated create a philosophical foundation for Independence, they didn’t actually do anything. You don’t get to the operative and binding section of the declaration until the final paragraph.

It is here that we find the colonists had no intention of birthing “a nation.” The Declaration birthed 13 “free and independent” states.

“We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” [Emphasis added]

The colonies declared their independence from Great Britain as individual sovereign political societies, each with the power to do all things “which independent States may of right do.” Each existed as a separate nation – think France, Great Britain, Virginia, New York. Great Britain affirmed this at the end of the war, recognizing the 13 sovereign states in the Treaty of Paris and naming them each individually.

And while the states were united in their act of declaring independence they never relinquished their sovereign individuality. It wasn’t until the states ratified the Articles of Confederation that they were formally united, and even then, the Articles specifically affirmed the sovereignty of the states.

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

The idea that July 4, 1776, birthed a nation makes up part of a broader narrative asserting that the United States is “one nation.” The Pledge of Allegiance encapsulates this view – “One nation…indivisible.”

But this narrative is a myth. The colonies declared independence as sovereign states. They ratified the Articles of Confederation as sovereign states. And they ratified the Constitution as sovereign states. They never ceded their sovereignty. To this day, the United States are a union of sovereign political societies.

The Fourth of July testifies to this truth.

]]>Totally Dissolved: The Lee Resolution and the Declaration of Independencehttp://tenthamendmentcenter.com/2019/07/02/totally-dissolved-the-lee-resolution-and-the-declaration-of-independence/
Tue, 02 Jul 2019 17:22:02 +0000http://tenthamendmentcenter.com/?p=28554Today in history, on July 2, 1776, the Second Continental Congress passed the Richard Henry Lee resolution, which called for ties between Great Britain and the American states to be “totally dissolved.” The monumental vote was unanimous among the colonies, with New York abstaining. Each state had one vote, regardless of size. Initially reluctant to […]]]>

Today in history, on July 2, 1776, the Second Continental Congress passed the Richard Henry Lee resolution, which called for ties between Great Britain and the American states to be “totally dissolved.”

The monumental vote was unanimous among the colonies, with New York abstaining. Each state had one vote, regardless of size.

Initially reluctant to support this measure, South Carolina pledged to join with the majority provided that there would be no dissent from a vote of independence. New York had not yet received instructions from its legislature to vote in favor, and British Admiral Richard Howe amassed a huge fleet of ships around Long Island. Still, New York’s state government gave its delegates permission to support this cause a week later. However, several states had already declared independence prior to this point.

By July 2, some still clung to hope for a peaceful reconciliation with Great Britain, and delegates such as John Dickinson, one of the most famous Americans of the era, refused to sign the document. Others felt that if they authorized a vote of independence, their state would be treated as Massachusetts had.

Following the agitation in Boston, Britain dissolved the autonomy of the Massachusetts government, closed Boston’s port, imposed a quartering law, and besieged the colony.

Upon the decision to secede from the British crown, a somber mood swept through Independence Hall as the delegates realized their actions would be considered treasonous. Despite the prospect of death by hanging, the decision had been made. Historian Mercy Otis Warren wrote this account of the event:

“Their transactions might have been legally styled treasonable, but loyalty had lost its influence, and power its terrors. Firm and disinterested, intrepid and united, they stood ready to submit to the chances of war, and to sacrifice their devoted lives to preserve inviolate, and to transmit to posterity, the inherent rights of men, conferred on all by the God of nature, and the privileges of Englishmen, claimed by Americans from the sacred sanctions of compact.”

In response to the resolution, John Adams believed that July 2nd would be celebrated as the most extraordinary holiday in America, and wrote to his wife Abigail:

“The second day of July 1776, will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.”

While Adams did not realize the date of the Declaration of Independence’s acceptance two days later would be the more recognizable and celebrated occasion, he fully grasped the significance of the day and its eternal importance.

Ironically, Adams would later attempt to diminish the significance of the moment, while Jefferson received much adulation for its philosophical influence as he became the lead opponent of the Adams administration.

TEXT OF LEE’S RESOLUTION

Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation

]]>The Supreme Court Gets It Wrong Even While Getting It Righthttp://tenthamendmentcenter.com/2019/07/01/the-supreme-court-gets-it-wrong-even-while-getting-it-right/
Tue, 02 Jul 2019 00:45:16 +0000http://tenthamendmentcenter.com/?p=28551Conservatives are cheering the recent opinion by the United States Supreme Court allowing a cross to remain on public land. But should they be? In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the country’s soldiers who fell in World War I. When the committee […]]]>

In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the country’s soldiers who fell in World War I. When the committee ran out of funds, the American Legion completed the memorial in 1925. The cross stands on a piece of land owned by the State of Maryland along the National Defense Highway.

In 2014, the American Humanist Association filed suit in federal court, claiming the costs associated with maintaining the memorial violated the Establishment Clause of the First Amendment. The District Court granted summary judgment for the American Legion, citing the 3-part test in Lemon v. Kurtzman, 403 U. S. 602 (any alleged violation of the Establishment Clause must be shown to have a secular purpose, and involve neither an establishment or infringement of any particular religion, nor involve excessive entanglement on the part of the government) and Justice Breyer’s analysis in Van Orden v. Perry, 545 U. S. 677, a case involving the Ten Commandments.

The cross is described in news accounts as being located on “public land” and supported by “taxpayer” funds. Absent is the clarification of “public land,” which raises the issue — is the land owned by the general government or is this a local matter?

The syllabus section of the Court’s opinion says that in 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land upon which it sits.

On its web site, the commission describes itself as follows:

“…a bi-county agency empowered by the State of Maryland in 1927 to acquire, develop, maintain and administer a regional system of parks within the Montgomery and Prince George’s Counties, and to provide land use planning for the physical development of Prince George’s and Montgomery counties.”

A monument erected in 1925 to honor fallen World War I veterans is at the center of this controversy, and the arguments focus on opposing sides of Constitutional guarantees set forth in the First Amendment – specifically, the Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion.”

Clearly, there is no federal involvement at issue here. Congress didn’t plan the cross. The federal government neither erected nor provided funding for the maintenance of the cross. Yet the Establishment Clause is claimed as the “Constitutional” issue rendering this local monument ripe for review by the highest court in the Land. Is this was the founders intended?

Is this something to which the States consented? The answer is unequivocally, “No!”

As James Madison explained in Federalist 45:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.”

Throughout the Philadelphia Convention, Madison pushed for a federal “negative” (veto power) over state laws. This idea was rejected on each attempt. When a number of states insisted on adding a Bill of Rights as a condition of ratification, he argued against it saying, along with Alexander Hamilton and James Wilson, among others, that it would be redundant since the “general” government had only the powers specifically enumerated.

The legislative powers of Congress are set forth in Article I, with the enumerated powers listed therein under Section 8. The Tenth Amendment asserts the following:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Accordingly, whether a cross is to remain on a piece of land within the State of Maryland is a matter to be resolved within the State of Maryland.

The Preamble to the Bill of Rights states, in relevant part, the following:

“The Conventions of a number of the States…expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.”

When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated. The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”

Justice Alito mentions passingly to the fact that the Establishment Clause only applied to the Federal Government at the time it was ratified, but glosses over this de facto modification of the Constitution by simply stating that changed after their ruling in Everson v. Board of Ed. of Ewing 330 U. S. 1 (1947).

In effect, the Court amended the Constitution.

The Constitution provides for amendments, and the process for doing so is set forth in Article V; Congress or the States can propose an amendment and ¾ of the States must support its ratification. Justice Alito is acknowledging that the Supreme Court can hold its own Constitutional convention without inviting the States to weigh in.

This interpretation by the Court is problematic, as well as unhistorical. The 39th Congress, which proposed the amendment, did not debate the issue of “incorporation,” and no such premise had been adhered to in the preceding years. But, by 1925 the “progressive” era was in full swing and the Supreme Court was well on its way toward inflicting a complete rewrite of the Constitution onto the States and the American people, thus diminishing the “separation of powers” between the States and the “general” government. This made-up doctrine has served the chief mechanism through which a “one-size-fits-all” form of government, with all rights and powers emanating from Washington, D.C., has arisen.

The general government was prohibited from making laws regarding religion by virtue of said power not being enumerated in Article I section 8. Justification for federal review of a State issue is centered around misapplication of the SCOTUS jurisdiction, namely the statement in Article III that “…judicial power (of the federal courts) shall extend to all cases…arising under this Constitution…” What is the result of this interpretation? It means that all one has to do to circumvent State policy is to call the matter a “Constitutional question,” file in federal court, and ignore the Tenth Amendment, the foundation of the Constitution, according to Thomas Jefferson.

This explains the long-winded discussion of the Establishment Clause, the standards set forth in the Lemon Test, the historical context of the creation of the cross and how all of the above is to be decided, none of the above referring to local standards, just a “national” examination thereof.

What Congress cannot do via legislative authority, the Supreme Court can and does by calling the matter a “Constitutional” question. Clearly, this is an end run around the limitations intended by the ratifying States. While the founders would have approved the interpretation of the Establishment Clause as it pertains to the outcome, the problem is not the outcome, but the jurisdiction; two justices would have been fine with having crosses removed across any public land across the continent. Had they represented the majority, then the outcome would certainly have been in conflict with the intent of the Establishment Clause. Seeking redress in the federal judiciary for local matters runs the significant risk that liberty shall not be preserved, but destroyed.

State sovereignty and decentralized decision-making, not the federal judiciary, were intended to be the vanguard of our liberty. By ignoring the purpose of the Bill of Rights and the history of the proposal and ratification debates surrounding the Fourteenth Amendment, our republican system of government has been systematically dismantled; the result is a “one-size-fits-all” system, where all rights and powers must emanate from Washington, D.C. The general government, intended to be limited in nature, has assumed sovereignty of its own, the States now rendered mere subsidiaries. The war for American independence was fought for the right to self-govern, to have issues decided by the people through their locally-elected representatives. By acquiescing to the overreaching national government into areas in which powers were never delegated, we have turned our backs on principles such as State sovereignty and consent of the governed. We have surrendered our revolutionary legacy.

]]>Report: Food Freedom Flourishes in Three States with Government Regulators Out of the Wayhttp://tenthamendmentcenter.com/2019/06/29/report-food-freedom-flourishes-in-three-states-with-government-regulators-out-of-the-way/
Sat, 29 Jun 2019 12:45:26 +0000http://tenthamendmentcenter.com/?p=28531Food freedom flourishes in states where government regulators simply get out of the way. The proof is in the pudding – the and cakes and the bread and the raw milk. According to a recent Forbes article, hundreds of local business have sprouted up across three states that have passed food freedom laws in recent […]]]>

Food freedom flourishes in states where government regulators simply get out of the way. The proof is in the pudding – the and cakes and the bread and the raw milk.

According to a recent Forbes article, hundreds of local business have sprouted up across three states that have passed food freedom laws in recent years without a single report of foodborne illness.

Food freedom laws exempt small food producing businesses from onerous regulations and licensing requirements. These businesses can sell directly to the consumer from a home, farm or ranch, as well as at farmers’ markets and roadside stands.

Wyoming enacted the first such law in 2015. The expansive law even allows poultry farmers with fewer than 1,000 birds to sell chicken and turkey, along with products made from their birds. It also authorizes the sale of raw milk, rabbit meat and most farm-raised fish.

Rep. Tyler Lindholm sponsored the Wyoming Food Freedom Act. He said his state now has the best artisan food laws in the nation.

“When it comes to local foods being produced by local people directly sold to consumers, Wyoming stands far above the rest.”

Following Wyoming’s lead, North Dakota and Utah passed similar laws. In 2017, Maine enacted a law that gives local governments the authority to enact ordinances regulating local food distribution without state interference.

States with food freedom laws have undeniably seen a boom in the number of small, local food producers.

Because these states don’t regulate businesses operating under food freedom laws and no central state registries or licensing databases exist, gauging the economic impact of food freedom can prove challenging. But according to Forbes, the available data paint an encouraging picture. For instance, the number of farmers’ markets has increased by nearly 70 percent since enactment of the Wyoming Food Freedom Act. And the North Dakota Farmers Market and Growers Association estimates there around 600 vendors sell their products at farmers’ markets, the majority operating under the state’s food freedom law.

The most common objections brought up in opposition to food freedom revolve around public safety. But according to Forbes, representatives from health departments in Wyoming, North Dakota and Utah reported exactly zero outbreaks of foodborne illnesses connected to a business operating under a food freedom law. Meanwhile, “Last year, the Centers for Disease Control and Prevention investigated and advised the public on 24 multistate outbreaks of foodborne illness, the highest in over a decade, with federally regulated romaine lettuce, chicken salad, and even Honey Smacks Cereal all linked to outbreaks that hospitalized Americans.”

It appears market forces do a better job of ensuring food safety than government regulatory schemes. As one Wyoming farmer and put it, if you produce a bad product, “you’re risking not only your family’s health, but the health of your community, your friends.”

Food freedom laws not only open markets, expand consumer choice, and create opportunities for farmers and entrepreneurs; they take a step toward restoring the United States’ original political structure. Instead of top-down, centralized regulatory schemes, these laws encourage local control, and they can effectively nullify federal regulatory schemes in effect by hindering enforcement of federal regulations.

While state law does not bind the FDA, the passage of food freedom laws creates an environment hostile to federal food regulation in those states. And because the state does not interfere with local food producers, that means it will not enforce FDA mandates either. Should the feds want to enforce food laws in states with food freedom laws, they have to do so by themselves.

As we’ve seen with marijuana and industrial hemp, a federal regulation becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages “the market.”

Less restrictive food laws almost certainly have a similar impact on FDA regulation. They make it that much more difficult for the feds to enforce their will within the state.

Constitutionally, food safety falls within the powers reserved to the states and the people. The feds have no authority to enforce food safety laws within the border of a state. Nevertheless, federal agencies still want more control over America’s food supply, and they go great lengths to get it. For example, the FDA actively bans the interstate sale of raw milk. But, not only do they ban the transportation of raw milk across state lines; they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban. The FDA ultimately wants to maintain complete prohibition of raw milk across the United States.

Food freedom laws undermine these federal regulatory schemes. Widespread adoption of food freedom, along with state and local refusal to enforce federal mandates, could make FDA regulations virtually impossible to enforce and nullify them in effect and practice.

]]>Trump’s Executive Order on Health Care Transparency and the Constitutionhttp://tenthamendmentcenter.com/2019/06/27/trumps-executive-order-on-health-care-transparency-and-the-constitution/
Thu, 27 Jun 2019 12:58:33 +0000http://tenthamendmentcenter.com/?p=28547Many of my media colleagues have been lauding President Donald Trump for signing an executive order earlier this week directing the federal Department of Health and Human Services to require health care providers to inform patients in advance of the true costs of medications and services. The gist of the president’s order seems universally pleasing. […]]]>

Many of my media colleagues have been lauding President Donald Trump for signing an executive order earlier this week directing the federal Department of Health and Human Services to require health care providers to inform patients in advance of the true costs of medications and services.

The gist of the president’s order seems universally pleasing. Who doesn’t want to know from a health care provider — your physician, an emergency facility or a hospital — what the likely cost will be to you and what the actual cost of medications was to the provider? We all would like to know that. But does the president have the constitutional authority to order it? In a word: No.

Here is the backstory.

In 2010, Congress enacted and President Barack Obama signed into law the Affordable Care Act, commonly called Obamacare. It was Obama’s signature legislation and, in his own words, it defined his presidency.

Obamacare consisted of a nearly complete federal takeover of the micromanagement of health care in America. It required that all persons in America have health insurance, or be charged for it by the IRS. It required that all employers of 50 or more full-time employees offer health insurance to all full-time employees. It required that all physicians record all patient data on computers to which the Department of Health and Human Services has access. And it gave the president the authority to implement the foregoing into positive law.

When Obamacare was challenged in the courts, it was ultimately upheld by the Supreme Court on the flimsiest of grounds. The core of the challenge was to the congressional command that individuals must acquire health care insurance. Under the Supreme Court’s Commerce Clause jurisprudence, Congress can regulate the channels of interstate commerce, but it cannot force persons to enter them.

Enter Chief Justice John G. Roberts Jr., who concocted the theory that the IRS financial charges to those who did not acquire health insurance were really taxes — even through the government and the challengers had argued that they were not taxes. Thus, with Roberts joining the court’s four liberal justices, the court ruled in 2012 that — since there is no limit on Congress’s taxing power — Congress can tax folks who fail to acquire health insurance, and so the congressional command to have health insurance is constitutional. Thus, Obamacare is constitutional. And that was that.

Until Donald Trump became president in 2017. In recrafting the nation’s tax laws, he and a Republican Congress removed the ability of the IRS to impose a tax on those without health insurance. That removal provoked another challenge to the constitutionality of Obamacare, this one in a federal court in Texas. There the court found that, without the tax to save it, Obamacare is unconstitutional. When that decision was appealed to the Fifth Circuit Court of Appeals in New Orleans, the Department of Justice refused to defend Obamacare.

This, in turn, raises two issues. First, if the Trump administration holds that Obamacare is in fact unconstitutional, either because the chief justice and his colleagues were wrong in 2012, as the president has argued, or because the federal court in Texas is correct, as the DOJ contends, how can President Trump rely on an unconstitutional statute to issue a command to health care providers?

The second issue has the larger constitutional impact and it soon will confront the Supreme Court in another context. It addresses the separation of powers and the nondelegation doctrine, the latter championed by the late Justice Antonin Scalia. The separation of powers is so integral to our system because — when complied with — it keeps all three branches of the federal government in check and prevents one from acquiring power from either of the other two. Congress writes the laws, the president enforces them, and the courts interpret them.

Now, back to Trump’s executive order on transparency. What happens constitutionally if one of the branches voluntarily gives away some of its power to either of the other two? Is that constitutional? The courts have consistently ruled that it is not.

Hence Obamacare’s delegation of lawmaking from Congress to the president — on which Trump relied for the legal basis of his transparency executive order, even though he and his DOJ have called that basis unconstitutional — profoundly violates both the separation of powers and the nondelegation doctrine. That doctrine prohibits Congress from delegating away its core function — lawmaking.

But let’s not lose sight of the big picture here. Under the Constitution, the federal government — whether Congress or the president — has no say in health care. We know that because the 10th Amendment reserves the power to regulate health, safety, welfare and morality to the states.

Where does all this leave us? The president is using a law he knows is unconstitutional to make folks feel good. The federal government — more out of control and outside the Constitution than ever — continues to regulate in areas nowhere even hinted at in the Constitution. And the more regulation we tolerate, the less freedom of choice we have.

Is there a free market, constitutional solution to all this? Yes. If the government stopped micromanaging health care, then the free market plus the self-regulation of the practice of medicine would bring us all a greater menu of choices than we have now. As well, competitive forces would improve the quality and lessen the cost of health care delivery. In a small way, this has happened below the Obamacare radar with the national proliferation of competitive and relatively inexpensive walk-in emergency facilities.

But such a free market solution would mean a monumental admission of failure and a voluntary relinquishment of power from the government. Don’t hold your breath waiting for either of those to happen.

]]>Step by Step for Liberty: Small Things Grow Great by Concordhttp://tenthamendmentcenter.com/2019/06/25/step-by-step-for-liberty-small-things-grow-great-by-concord/
Tue, 25 Jun 2019 11:57:06 +0000http://tenthamendmentcenter.com/?p=28544Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom! Writing as Candidus in the Boston Gazette on Oct. 14, 1771, Samuel Adams recognized an important and timeless truth. Turning a blind eye to an attack on liberty only guarantees that more […]]]>

Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom!

Writing as Candidus in the Boston Gazette on Oct. 14, 1771, Samuel Adams recognized an important and timeless truth. Turning a blind eye to an attack on liberty only guarantees that more attacks will come in the future.

The same goes for violations of the Constitution, which the Founders often referred to as “usurpations,” or the exercise of “arbitrary power.”

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” [emphasis added]

Here’s something that shouldn’t be surprising: Jefferson was right.

But turning things around from a government with tens of thousands of unconstitutional “laws,” regulations, rules and orders on the books isn’t going to happen in a single step either.

Let me be blunt. Anyone promising a silver bullet is lying to you. It’s going to take a lot of work and thousands of steps forward to make a stand for the Constitution and liberty.

While the odds are certainly against us at this stage, we can take comfort in the fact that we have a lot of amazing advice – successful advice – from the Founders and Old Revolutionaries.

Written by John Dickinson in response to the Townshend Acts of 1767, it’s a Latin phrase which means “small things grow great by concord.” And it’s something we value immensely every single day here at the Tenth Amendment Center.

BACKGROUND

In May 1765, when most attention was being paid to the hated Stamp Act, King George III gave Royal Assent to the Quartering Act, which required the colonies to house British soldiers in barracks provided and paid for by the colonies.

If those barracks were too small to house all the British soldiers, then the colonies or the specific localities in question were required to accommodate them in local “inns, livery stables, ale-houses, victualling-houses, and the houses of sellers of wine.”

And should there still be soldiers without accommodation after all these “publick houses” were filled, the colonies were then required to “take, hire and make fit” for these soldiers, “such and so many uninhabited houses, outhouses, barns or other buildings, as shall be necessary” to house the rest.

However, the New York colonial assembly didn’t like being commandeered to provide and pay to house British troops. So they refused to comply with the law.

More than two years later, the first of the Townshend Acts, the New York Restraining Act, suspended the assembly and governor of New York by prohibiting them from passing any new bills until they agreed to comply with the Quartering Act 1765.

In effect, this left all decision-making outside the colony.

Sounds familiar, doesn’t it?

The most influential response to the acts came from John Dickinson, widely known as “the Penman of the Revolution.” Opposing the new Acts, he wrote a series of twelve essays known as “Letters from a Farmer in Pennsylvania.”

In the first of his “Letters,” Dickinson spent time discussing the New York Restraining Act. He wrote:

“Whoever seriously considers the matter, must perceive that a dreadful stroke is aimed at the liberty of these colonies. I say, of these colonies; for the cause of one is the cause of all. If the parliament may lawfully deprive New York of any of her rights, it may deprive any, or all the other colonies of their rights; and nothing can possibly so much encourage such attempts, as a mutual inattention to the interests of each other. To divide, and thus to destroy, is the first political maxim in attacking those, who are powerful by their union.

He continued on to say that, in essence, the rightful response at that moment would have been for other colonial assemblies to at least pass non-binding resolutions informing Parliament that the act was a violation of rights and that it should be repealed.

Why? His answer came through clearly at the end of this first letter, where signed off with that Latin phrase mentioned above, Concordia res parvae crescunt.

Small things grow great by concord.

STEP BY STEP

In many ways, today’s federal government has suspended the legislative power of state assemblies by assuming control over powers never delegated to it in the Constitution.

Politicians in congress and the executive branch – and the lobbyists that benefit financially from their unconstitutional acts – are all too happy to utilize this wealth of power.

For far too long, people have stood idly by. They’ve put all their time, energy and money into “voting the bums out” with the hope that a new crop of federal politicians would ride in and save the day.

But, while new bums have come and gone – and come and gone, and come and gone – the day has yet to be saved.

Pushing off the yoke of the most powerful government in the history of the world is not something that’s going to happen in one fell swoop. This is something that Dickinson and many others recognized early on.

“Great Britain,” they say, “is too powerful to contend with; she is determined to oppress us; it is in vain to speak of right on one side, when there is power on the other; when we are strong enough to resist we shall attempt it; but now we are not strong enough, and therefore we had better be quiet; it signifies nothing to convince us that our rights are invaded when we cannot defend them; and if we should get into riots and tumults about the late act, it will only draw down heavier displeasure upon us.”

Today, just as in the pre-Revolutionary times, many people are afraid of upsetting the status quo. So they sit idly by – and urge others to the same

Dickinson’s response?

Are these men ignorant that usurpations, which might have been successfully opposed at first, acquire strength by continuance, and thus become irresistible?

He was far from alone.

Samuel Adams, for example, urged the same:

The liberties of our country, the freedom of our civil Constitution are worth defending at all hazards; and it is our duty to defend them against all attacks.

If we stand by and do nothing we absolutely know what the result will be.

More importantly, no matter how much the odds appear to be against us, it’s our duty to do what’s right. For us at the Tenth Amendment Center, doing what’s right is pretty straightforward:

]]>The First Question We Should Always Askhttp://tenthamendmentcenter.com/2019/06/24/the-first-question-we-should-always-ask/
Mon, 24 Jun 2019 08:48:59 +0000http://tenthamendmentcenter.com/?p=28390Here is the first question you should ask about any proposal made by any person in the federal government.]]>

Here is the first question you should ask about any proposal made by any person in the federal government.

Is this authorized by the constitution?

Not “Do I like this policy?”

Not “Do I like the guy proposing the policy?”

And not even “Is this policy a win for liberty?”

The first question should always be is this constitutional?

If it’s not – based on the original meaning of the Constitution as ratified – it shouldn’t be done.

Period.

We seem to be drifting further and further away from this standard. The left abandoned it decades ago – if it ever embraced it at all. I’ve also seen countless Republicans and conservatives turn their backs on constitutional fidelity as well because the limits on federal power stand in the way of enacting policies they like. Or simply because they want to defend “their guy” in the White House.

I am going to put this as bluntly as I can. These people are wrecking the constitutional system just as surely as the “libtards” they hate.

In an 1809 letter to the Washington Tammany Society, Thomas Jefferson wrote:

“Aware of the tendency of power to degenerate into abuse, the worthies of our country have secured its independence by the establishment of a Constitution and form of government for our nation, calculated to prevent as well as to correct abuse.”

When we erase the boundaries set around federal power by the constitution, we open the door for the government to “degenerate into abuse.” Instead of a government operating within strict limits, we end up with politicians exercising arbitrary power.

“Politicians come and go, but once your freedoms are gone, they’re gone forever.

John Adams expressed a similar sentiment in a 1775 letter to his wife Abigail. In previous correspondence, she described the difficulties endured by the people of Boston and other coastal cities under the heavy hand of the British. Adams said there was one consolation.

“Cities may be rebuilt, and a People reduced to Poverty, may acquire fresh Property: But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.”

The same is true for limits on federal power. When you tear them down, you can never build them back. And the limits on federal power serve as the bulwark to protect our freedom an liberties.

It’s like a hole in a dam. Once the water starts squirting through the hole, you’ll never plug it. You’ve compromised the integrity of the dam. The hole eventually grows until the entire dam collapses.

This is true whether a politician erases boundaries to do things you hate or things you approve of. Either way, once they erase the boundaries, they’re gone forever. You can’t draw them back when somebody you don’t like takes the reins of power and tramples on your liberties. As Fairbanks said, politicians come and go. At some point, one will come who will abuse any power available to him. You can only prevent this by ensuring that the power is never available to them to begin with.

As the British were beginning to chip away at the rights of the colonists prior to the American Revolution, Adams wrote:

“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.”

He went on to assert:

“When the people give way, their deceivers, betrayers, and destroyers press upon them so fast, that there is no resisting afterwards.”

As Lord Acton asserted, power corrupts and absolute power corrupts absolutely. This was precisely why the founding generation insisted on placing absolute limits on government authority with a written Constitution. They experienced firsthand the erosion of their liberties as British parliamentary power expanded into a sphere of authority that rightly belonged to their own colonial assemblies. Adams likened it to cancer.

“The nature of the encroachment upon the American constitution is such, as to grow every day more and more encroaching. Like a cancer, it eats faster and faster every hour.”

We see the same thing happening today as federal power intrudes deeper and deeper into the sphere of authority rightly belonging to the state and the people.

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”

A single step starts with neglecting that first question.

Is it constitutional?

When we fail to ask it – when we fail to hold the federal government within its limits no matter what – we open up “a boundless field of power.”

Pause for just a moment. Think of the worst politician you can imagine. Maybe it’s Alexandria Ocasio-Cortez. Maybe it’s Bernie Sanders. Maybe it’s Hillary Clinton. Maybe it’s Elizabeth Warren. Or if you were an Obama supporter, just consider Donald Trump.

Now – imagine them in possession of a boundless field of power. That’s where you’re heading when you support the current president doing whatever he pleases because you like him. Never forget, there will always be a “next guy.”

]]>Oppose a Disease at its Beginninghttp://tenthamendmentcenter.com/2019/06/22/oppose-a-disease-at-its-beginning/
Sat, 22 Jun 2019 15:12:26 +0000http://tenthamendmentcenter.com/?p=28538Founder after founder warned us against turning a blind eye to violations of the Constitution, which they also called "arbitrary power" or "usurpations" of power.]]>

This article is featured in is today’s Tenther newsletter, which everyone in the nullification movement gets daily or weekly. Be one of them – and Become a member here to support the TAC.

Here at the TAC, we take on a wide range of issues across the political spectrum. And invariably, any time we cover one, we hear some people telling us how it’s unimportant. They tell us that we should focus on something more “pressing.”

Or, we’re told that one issue is just for an “emergency,” and we should ignore it to spend our time and energy on long-established violations of the Constitution.

While I totally understand the need to prioritize in a time when we have thousands of unconstitutional laws and regulations on the books – it’s not just foolish, but also dangerous to consider opposition to any of them as “unimportant” or a waste or time.

I’m sure you’ve heard things like this as much as I have.

“The Patriot Act is just for the terrorists”

“The income tax is only an emergency war time measure”

“If we don’t ban ___, people will die in the streets!”

“But it’s for the children!”

We were warned – repeatedly – how dangerous this mentality is.

Founder after founder warned us against turning a blind eye to violations of the Constitution, which they also called “arbitrary power” or “usurpations” of power.

Samuel Adams put it this way:

Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom!

John Dickinson, the “Penman of the Revolution,” urged us to “Oppose a disease at its beginning” because even a single concession to the limits of government power will act as a “PRECEDENT for other concessions” in the future.

He went so far as to say those concessions lead to the end of freedom.

Thomas Jefferson gave the same advice in his famous “Notes on the state of Virginia.” He wrote:

“The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”

These leading founders and revolutionaries recognized a timeless truth. When you allow a government to chip away at the limits on its power, eventually the dam will burst. You will end up with a government exercising virtually unlimited authority – arbitrary power.

John Adams warned us to “Nip the shoots of arbitrary power in the bud” because this “is the only maxim which can ever preserve the liberties of any people.”

And George Washington, in his famous farewell address written by James Madison – rejected the notion of a “living, breathing” Constitution that just changes with the times based on political whims in the Congress, the Executive or the Courts rather than through the process established in the Constitution itself.

He said:

But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.

I covered this all in more detail on Good Morning Liberty on Friday morning: “A warning from 5 Founders on the Danger of Ignoring the Constitution.”

]]>Can Government Punish Twice for the Same Crime?http://tenthamendmentcenter.com/2019/06/20/can-government-punish-twice-for-the-same-crime/
Thu, 20 Jun 2019 14:03:15 +0000http://tenthamendmentcenter.com/?p=28533Earlier this week, the Supreme Court of the United States ruled that the same criminal event can trigger two prosecutions, one by the feds and one by the state; and it can also trigger two punishments.]]>

“…nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb…”
-Fifth Amendment to the U.S. Constitution

The government in America is out of control.

There is no happy ending here. Earlier this week, the Supreme Court of the United States ruled that the same criminal event can trigger two prosecutions, one by the feds and one by the state; and it can also trigger two punishments.

Here is the backstory.

Terance Gamble, who had once been convicted of robbery in Alabama, was stopped by a Mobile, Alabama, policeman who claimed Gamble was driving a car with a damaged headlight. He then claimed Gamble gave him consent to search his car. Neither of these police claims is credible, but that is not the point of this argument. When the search revealed a loaded handgun, Gamble was arrested and his constitutional odyssey began.

Because Gamble was a convicted felon at the time his vehicle was stopped and the handgun was discovered, his possession of the handgun violated Alabama law and also violated federal law. Both laws prohibit convicted felons from owning or possessing firearms for life.

After he pleaded guilty in Alabama state court to being a felon in possession of a handgun and began to serve his jail term, federal prosecutors sought and obtained an indictment for Gamble’s violation of the federal statute prohibiting felons from possessing firearms. Gamble then pleaded guilty in federal court, reserving his right to challenge his federal conviction on the theory that it constituted double jeopardy.

The Fifth Amendment to the U.S. Constitution provides that no person shall “for the same offense to be twice put in jeopardy of life or limb.” This is commonly referred to as the double jeopardy clause. Like the other initial eight amendments in the Bill of Rights, the Fifth Amendment was written largely in response to government excesses and abuses during the colonial period. In the case of this clause, it was expressly written to prevent repeated attempts to convict.

Notwithstanding the plain language in the Amendment, the trial court dismissed Gamble’s challenge and a federal appellate court upheld that dismissal. Earlier this week, the Supreme Court agreed with the lower courts and permitted the second guilty plea to stand, and the second incarceration to be served.

It is not only un-American and contrary to the Fifth Amendment; it violates the natural right to proportional punishment. That right guarantees that a defendant shall not be punished more severely than others similarly situated and not more severely than the defendant’s behavior warranted. I am not arguing here that all convicted felons should have access to firearms, though many — like those convicted of nonviolent crimes — should. Yet, Gamble’s mere possession of this handgun harmed no one, and it hardly merits a double dose of punishment.

No crime merits double punishment. We know that because it was a policy judgment made by James Madison & Co. when Congress passed and the states ratified the Bill of Rights. The framers were personally familiar with the British officials’ practice of repeatedly trying defendants — usually folks colonial officials hated or feared — for the same crime, until they got the verdict and the punishment that they wanted.

We fought a revolution over abuses like this, and we wrote a Constitution to prevent those abuses from happening here.

And here we are in 2019 and those abuses are still with us. If the feds fail to convict you, the state has a shot. If the state fails to convict you, the feds have a shot. If both governments want to charge you and try you and punish you for the same offense — the same criminal event and the same crime — they can constitutionally do so.

Why should you care about this? You should care because repeated attempts to convict are hallmarks of tyrants. Yet the Supreme Court, in an obeisance to textualism — the literal adherence to the words of a document no matter the outcome of that adherence — ruled that the Fifth Amendment only prohibits the re-prosecution for the same offense, not for the same crime; and Gamble’s behavior was actually two crimes, one state and one federal, not two offenses.

Come again? Isn’t it obvious from history that all repeated attempts to convict for offenses or crimes are barred by the values that underlie the words the Court has just abused?

This business of double prosecutions for the same event or offense or crime and double punishments is bad law. As Justice Neil Gorsuch wrote in dissent, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.”

Compare that clear liberty-loving language with the Court’s tortured idea of the textual differences between offenses and crimes, and one can see that judicial intellectual chicanery can always find a means to an end. The Supreme Court should be in the business of protecting our rights, not upending them.

The benefit of any historical doubt or textual ambiguity should always favor liberty over power, because liberty is inalienable and integral to our humanity and essential for our happiness. Power is whatever the government wants it to be.

]]>I’m Looking at You Congress!http://tenthamendmentcenter.com/2019/06/19/im-looking-at-you-congress/
Wed, 19 Jun 2019 19:04:06 +0000http://tenthamendmentcenter.com/?p=28503Modern presidents overstep their constitutional authority virtually every day they’re on the job. We should unceasingly criticize this executive overreach and the presidents who participate, from Clinton to Bush to Obama to Trump. But the president isn’t solely responsible for this bastardization of the constitutional system. Yes Congress, I’m looking at you. In the latest […]]]>

Modern presidents overstep their constitutional authority virtually every day they’re on the job. We should unceasingly criticize this executive overreach and the presidents who participate, from Clinton to Bush to Obama to Trump. But the president isn’t solely responsible for this bastardization of the constitutional system. Yes Congress, I’m looking at you.

In the latest example of executive overreach, President Trump announced a plan to smack a 5 percent tariff on all Mexican products crossing the U.S. border. The levy was scheduled to go into effect on June 10. Trump wasn’t trying to start another trade war. These tariffs were all about immigration. The president said the tariffs would remain in place “until such time as illegal migrants coming through Mexico, and into our Country, STOP,” He went on to say that “The Tariff will gradually increase until the Illegal Immigration problem is remedied, … ..at which time the Tariffs will be removed.”

As it turns out, the threat was short-lived. Just nine days later, Mexico agreed to “take unprecedented steps to increase enforcement to curb irregular migration,” according to a United States-Mexico Joint Declaration.

Whether you call it a brilliant negotiating strategy or political theater, it was a dangerous game to play. In simplest terms, Trump threatened to tax you in order to “fix” immigration. You may or may not like the strategy. But make no mistake; had the president followed through on the tariffs, it was a tax and you would have been paying.

And here’s the bigger problem: Trump was playing way out of bounds. This was yet another example of presidential overreach. Had Trump followed through and implemented the tariffs, it would have been no different than Obama using his pen and his phone. The executive branch has no constitutional authority to unilaterally levy tariffs. Congress holds that power, not the president.

So, how could Trump get away with this?

As with so many things, Congress has abrogated its constitutional responsibility and passed the buck to the president.

Trump is acting under the International Emergency Economic Powers Act, a law enacted in 1977 that gives the president broad unilateral authority to regulate commerce in the event of an “unusual and extraordinary threat… to the national security, foreign policy, or economy of the United States.”

But Congress does not have any constitutional authority to transfer its delegated powers to another branch. When Congress takes a power delegated to it in the Constitution and transfers it to the president, in effect, it illegally amends the Constitution.

This kind of transfer of authority violates basic rules of legal construction. In contract law, when a principal (the people) delegates power to an agent (the federal government) that entity cannot transfer the power to another party without specific direction. No such authorization exists. So, Congress can’t simply give the president a blank slate to make a decision on tariffs based on his own discretion. Congress must make that call and make it specifically before any such levy.

Trump is wrong to unilaterally threaten to levy tariffs on Mexican products. But the real blame lies on the steps of Capitol Hill. Congress has played pass the buck with its powers for decades. This allows the “representatives” of the people to pass the buck and shuck responsibility for everything that happens. They can point fingers at the president, shrug and claim there’s nothing they can do about it.

Well – yes there is. They could do their own job!

]]>Medical IDs: Enemy of Privacy, Liberty, and Healthhttp://tenthamendmentcenter.com/2019/06/18/medical-ids-enemy-of-privacy-liberty-and-health/
Tue, 18 Jun 2019 11:46:52 +0000http://tenthamendmentcenter.com/?p=28527The unique patient identifier system puts the desires of government bureaucrats and politically powerful special interests ahead of the needs of individual patients and health care providers.]]>

Last week, the House of Representatives voted in favor of a Labor, Health and Human Services, and Education appropriations bill amendment to repeal the prohibition on the use of federal funds to create a “unique patient identifier.”

Unless this prohibition, which I originally sponsored in 1998, is reinstated, the federal government will have the authority to assign every American a medical ID. This ID will be used to store and track every American’s medical history.

A unique patient identifier would allow federal bureaucrats and government-favored special interests to access health information simply by entering an individual’s unique patient ID into a database. This system would also facilitate the collection of health information without a warrant by surveillance state operatives.

The health records database could easily be linked to other similar databases, such as those containing gun purchase records or education records. If mandatory E-Verify becomes law, the health records database could even be linked to it, allowing employers to examine a potential employee’s medical history.

The possibility that the unique patient identifier system may be linked to a database containing information regarding gun ownership is especially disturbing given the bipartisan support for “red flag” laws. These laws allow the government to deny respect for someone’s Second Amendment rights without due process and based solely on an allegation that the individual is mentally unstable and likely to commit an act of gun violence.

Combining red flag laws with the unique patient identifier system would leave a gun owner who ever sought psychiatric help for any reason at risk of losing his ability to legally possess a gun.

Unscrupulous government officials could use medical information to harass those whose political activities challenge the status quo. Anyone who doubts this should ask themselves what a future J. Edgar Hoover or Lois Lerner would do with access to the medical information of those involved in political movements he wishes to silence.

The unique patient identifier undermines one of the foundations of quality health care: the doctor-patient relationship. Accurate diagnosis requires that patients share intimate details about their lives — ranging from details about their diet and exercise habits to their sexual history and alcohol and drug use — with their physicians.

If patients legitimately fear information shared will be compromised, they will be unwilling to be completely honest with their physicians, making it impossible for physicians to effectively treat their patients.

Proponents of the unique patient identifier claim it will improve efficiency. But, in a free society, the government should never endanger privacy or liberty for efficiency. Besides, when has any government intervention in health care ever improved efficiency or increased patients’ or health care providers’ satisfaction with the system?

The unique patient identifier system puts the desires of government bureaucrats and politically powerful special interests ahead of the needs of individual patients and health care providers. Instead of further intervening in health care and further destroying our privacy and our liberties, Congress should give patients control over their health care by giving them control over health care dollars through expanding access to Health Savings Accounts and health care tax credits. In a free market, patients and doctors can and will work tighter to ensure patients’ records are maintained in a manner that provides maximum efficiency without endangering privacy or liberty.

]]>Trump Administration Spends U.S. to May Budget Deficit Recordhttp://tenthamendmentcenter.com/2019/06/17/trump-administration-spends-u-s-to-may-budget-deficit-record/
Mon, 17 Jun 2019 11:30:00 +0000http://tenthamendmentcenter.com/?p=28523If you were thinking maybe federal government spending might slow down a bit after the national debt crossed the $22 trillion mark – well, it didn’t. Last month, the federal budget deficit came in at $208 billion, according to Treasury Department data. It was the largest May deficit in U.S. history. Uncle Sam spent $440 billion last month, […]]]>

There were some calendar effects that shifted about $50 billion in payments from June into May. Even so, the May deficit reflects a broader trend. The deficit for the fiscal year to date stands at $739 billion. That compares with $532 billion through the same period in fiscal 2018 — a 38.8 percent increase.

The current budget deficit is well ahead of Congressional Budget Office projections. The CBO estimated the 2019 budget deficit (government spending over revenue) would come in at $897 billion. That would be a 15.1 percent increase over the 2018 deficit of $779 billion. (If you’re wondering how the debt can grow by a larger number than the annual deficit, economist Mark Brandly explains here.) According to the CBO, the deficit will hit $1 trillion by 2022 and remain at that level or higher through 2029. Keep in mind, the CBO tends toward conservative projections. At the current rate, the federal government may well run a $1 trillion deficit this year. In fact, the Treasury Department’s deficit projection for fiscal 2019 was higher than the CBO’s, coming in at $1.085 trillion.

Commentators tend to place the blame for surging deficits on Trump tax cuts, but spending is the biggest factor. For the first time in U.S. history, the federal government spent more than $3 trillion in the first eight months of the fiscal year. Spending is up 9.3 percent on the year so far.

Although the economy is supposedly in the midst of a boom, U.S. government borrowing looks more like we’re in the midst of a deep recession. The only other time the federal government has run deficits this high was during the four years from 2009 through 2012 when the Obama administration boosted spending to grapple with the 2008 financial crisis.

Meanwhile, revenues have risen modestly by 2.3 percent.

The boost in receipts last month came primarily from Trump’s tariffs. Gross tax revenues from corporations fell to $6 billion in May from $7 billion a year earlier.

As the debt spirals upward, the cost of servicing that debt goes up as well. Interest on the $22 trillion-plus national debt ranks as one of the fastest growing budget items. Net interest payments totaled $268.3 billion last month, up 15.6 percent from a year ago.

Growing debt coupled with soaring interest payments creates a vicious upwardly spiraling cycle. As debt grows, it costs more money to service it. That requires more borrowing, which adds to the debt, which increases the interest payments — and on and on it goes. At the current trajectory, the cost of paying the annual interest on the US debt will equal the annual cost of Social Security within 30 years, according to a report released by the Congressional Budget Office last year.

The enormous U.S. debt is an underlying reason why the Federal Reserve cannot normalize interest rates.

Republicans insist that tax cuts will eventually pay for themselves by generating faster economic growth But as we have said repeatedly, high levels of debt retard economic growth. Several studies estimate that economic growth slows by about 30 percent when the debt to GDP ratio rises to about 90 percent. The CBO projects the U.S. will hit 106 percent debt to GDP ratio in the next decade, but many analysts say the U.S. economy is already in the 105 percent range. Ever since the U.S. national debt exceeded 90 percent of GDP in 2010, inflation-adjusted average GDP growth has been 33 percent below the average from 1960–2009, a period that included eight recessions.

And yet the politicians and bureaucrats in Washington D.C. have absolutely no intention of addressing the spending issue. They just keep kicking the can down the road. Of course, at some point, they will run out of road.

]]>Want Civic Literacy? Quit Focusing on D.C.http://tenthamendmentcenter.com/2019/06/15/want-civic-literacy-quit-focusing-on-d-c/
Sat, 15 Jun 2019 13:44:14 +0000http://tenthamendmentcenter.com/?p=28492If we truly want to engage young people in the political process, we need to stop incessantly talking about Washington D.C. and focus on issues closer to home. I have been teaching U.S. Government in the state of Indiana for four years now. The first half of my teaching career I spent teaching business, but […]]]>

If we truly want to engage young people in the political process, we need to stop incessantly talking about Washington D.C. and focus on issues closer to home.

I have been teaching U.S. Government in the state of Indiana for four years now. The first half of my teaching career I spent teaching business, but social studies disciplines are my passion.

When I tell people I teach Government I get a variety of responses. The predominant reaction usually involves people ranting about the current generation’s abysmal understanding of “civics.”

You’ve probably seen the typical “man on the street” interviews with these people. They have no foundational basis for what they believe or why it is right – or in most cases wrong. I see it on a daily basis. I ask probing questions as I begin the class, such as: What is the Bill of Rights? How many branches of government are there? How many senators does each state have? Many of these questions get met with blank stares or wild guesses.

Don’t just take my word for it. The 2019 Survey of Civic Literacy conducted by the American Bar Association also reveals this truth. The survey of 1,000 U.S. citizens gives us a glimpse at some of the shortcomings. For example, one out of every 10 people believes the Declaration of Independence freed the slaves. While the overall numbers were somewhat encouraging, there are several responses that highlight the gap that exists in truly understanding how our government should and does function.

Former Speaker of the House Tip O’Neil once famously quipped “all politics is local”. What did the former representative from Massachusetts mean with this phrase? As he faced a challenge for his seat, he used this logic in appealing to the voters at the local level by introducing a $1 billion spending bill on infrastructure.

Of course, to those who follow politics, this kind of pork-barrel spending is what drives people crazy. However, it also drives home the point; if we want to increase civic literacy, we must teach people about local matters.

Congressional solutions generally leave constituents frustrated and feeling ostracized. So, instead of looking to the federal Congressman for relief, people should look to their local representatives for answers.

When we spend so much of our time and energy focused on Washington, D.C. and the general government, it can be easy to lose interest. In reality, I will never come into direct contact with those elected there or with the bureaucrats that run the Beltway. I am much more inclined to be impacted by my county commissioners, town councilman, school board members, etc.

These past few years, my students got a first-hand look at this, as the county they live in went through a debate over introducing windmills. They were able to see the billboards, and read the op-eds and opinion pieces from local businessmen and politicians on the matter. Students attended open hearings and learned on their own about the pros and cons of wind power.

At one point in my class, I use the Nullification in One Lesson provided by The Tenth Amendment Center. It is always encouraging to see how students engage with the lesson. I routinely get students that comment on how they had no idea that the states could have a say so in public policy.

Teaching our students the power they have as citizens is vital. We must move on from focusing on the worn out “We the People” and rehashing the mantra that we are a “democratic republic.” We should be discussing how we, as citizens, can return power back to the state and local levels through applying the principles of the 10th Amendment. We should be highlighting the power that local leaders have in making policy that impacts us on a regular basis.

Taking this route will not only increase civic engagement, but it will highlight the true intended structure for a future generation of leaders. This will provide them with the best understanding of how federalism was intended to work. It will empower them to act and be involved when they see the power of local and state government and not feel powerless to the machine in D.C.

]]>Questions Remain After FDA Hearing: Will the Feds Release Their Grip on CBD?http://tenthamendmentcenter.com/2019/06/13/questions-remain-after-fda-hearing-will-the-feds-release-their-grip-on-cbd/
Thu, 13 Jun 2019 17:40:57 +0000http://tenthamendmentcenter.com/?p=28515On May 31, the FDA held its first hearing on CBD. After the meeting, the same questions remain as before: will the federal agency continue to maintain its current regulation and prohibition of hemp-derived cannabinoids? Or will it give in to market forces and open the door for the general sale and use of CBD? […]]]>

On May 31, the FDA held its first hearing on CBD. After the meeting, the same questions remain as before: will the federal agency continue to maintain its current regulation and prohibition of hemp-derived cannabinoids? Or will it give in to market forces and open the door for the general sale and use of CBD?

Despite removing industrial hemp from the list of controlled substances late last year, the federal government still prohibits the general sale of CBD products and the addition of CBD to food and beverages under FDA rules. The hearing did not result in any kind of policy change but is widely seen as the first step toward a comprehensive regulatory scheme for CBD. What that will look like remains to be seen.

More than 100 people testified before a panel of FDA officials. According to a Forbes article, most speakers agreed on “the need for federal CBD oversight for production quality, more testing and research and better product labeling and dosing guidance.”

Acting FDA Commissioner Ned Sharpless opened the hearing with comments about the safety of CBD that doesn’t bode well if you hope the feds will adopt a more hands-off approach.

“There are real risks associated with [THC and CBD] and critical questions remain about the safety of their widespread use in foods and dietary supplements … While we have seen an explosion of interest in products containing CBD, there is still much that we don’t know. What if someone applies a topical CBD lotion, consumes a CBD beverage or candy and consumes some CBD oil? How much is too much?”

FDA principal deputy commissioner Amy Abernethy echoed her boss’s sentiments, saying there is a need to “further clarify the regulatory framework to reduce confusion in the market,” and “Key questions about product safety need to be addressed. Data are needed to determine safety thresholds for CBD.”

2018 Farm Bill and CBD

With the passage of the farm bill, the federal government now treats industrial hemp as an agricultural commodity instead of a controlled substance. While the DEA no longer has the authority to regulate hemp, the provisions of the farm bill have no bearing on FDA rules and regulations regarding CBD. In fact, a section in the farm bill makes this explicit.

Section 297D, paragraph (c)(1) “Regulations and Guidelines; Effect on Other Law” states “nothing in this subtitle shall affect or modify the Federal Food, Drug, and Cosmetic Act.”

Practically speaking, the passage of the farm bill does not mean CBD is federally-legal in all 50 states, as some hemp supporters claim. In fact, the FDA still maintains a strict prohibition on the sale of CBD in the U.S.

To date, the FDA has only approved one medication with cannabidiol as an active ingredient – Epidiolex for the treatment of seizures – and the FDA classifies CBD as “a drug for which substantial clinical investigations have been instituted.” Under federal law, that designation means the FDA maintains full control over the substance and it cannot be marketed as a “dietary supplement.” The agency also maintains that the sale of CBD or any food products containing the substance is illegal.

At this time, the agency hasn’t changed its position on CBD. During a congressional hearing in March, then-FDA Commissioner Scott Gottlieb said he understands that Congress wants a pathway to CBD availability, but said “it is not a straightforward issue” due to the fact that the agency has approved CBD for treatment of epilepsy and it is “subject of substantial clinical investigation.” Both of these factors prohibit CBD from being sold as a “health supplement” and from being added to food.

Gottlieb said, “the law does allow us to go through a regulatory process and go through a notice and comment rule-making to establish a framework to allow it to be put into the food supply.”

The May 31 meeting was the first step in that process.

In effect, while farmers can now legally grow hemp for commercial purposes, including the production of fiber, biofuel, building products, paper, clothes and even food products that don’t contain CBD, the sale of cannabinol or food products containing CBD remain federally-illegal, as it has been all along, unless the FDA changes its policy or Congress passes legislation specifically legalizing CBD.

“Docket comments will help inform the FDA as we consider the important policy options related to the regulation of products containing cannabis or cannabis-derived compounds.”

Even if the FDA elects to maintain strict regulation of CBD, it will have a hard time enforcing its will if states don’t cooperate. Despite past and ongoing federal prohibition, CBD is everywhere. A New York Times article asserted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”

This was happening when both the DEA and FDA prohibited CBD. It will undoubtedly continue as long as market demand remains and states don’t interfere. The FDA can’t effectively enforce prohibition without the assistance of state and local officials.

According to the FDA, the agency prioritizes enforcement based on a number of factors, including “agency resources and the threat to public health. FDA also may consult with its federal and state partners in making decisions about whether to initiate a federal enforcement action.”

Even with both the FDA and DEA theoretically enforcing federal laws and regulations banning CBD, state and local action have already nullified federal prohibition in practice and effect. There’s no reason to think that won’t continue as long as states maintain the same stance on CBD as they did under the 2014 farm bill. Simply put, the federal government lacks the personnel and resources to crack down on CBD – even if the FDA wants to.

]]>Remembering George Mason and the Virginia Declaration of Rightshttp://tenthamendmentcenter.com/2019/06/12/remembering-george-mason-and-the-virginia-declaration-of-rights/
Wed, 12 Jun 2019 20:19:05 +0000http://tenthamendmentcenter.com/?p=28517On June 12, the Virginia Declaration of Rights, penned by George Mason, was ratified by the Fifth Virginia Convention in 1776. ]]>

Every July 4, Americans throw themselves a party to celebrate our Independence Day. But while the date is heavy on flags, fireworks, and red, white and blue-themed BBQ, understanding the reasons why America’s founding is uniquely worthy of celebration often gets little attention. However, rather than bypassing the principles and ideals involved in order to move directly to celebrations, we would be well-served by giving June 12 a little more thought, as well.

That was the day the Virginia Declaration of Rights, penned by George Mason, was ratified by the Fifth Virginia Convention in 1776. And it has pride of place as the first of several declarations of rights in the era — weeks before the Declaration of Independence and well before our Bill of Rights and the French Declaration of the Rights of Man and Citizen.

Mason’s defense of individual rights as “the basis and foundation of government,” which the Marquis de Condorcet called “the first Bill of Rights to merit the name,” and an updated version of which is still in effect in Virginia, profoundly influenced both our Declaration of Independence and our Bill of Rights — our rationale for liberty and the limitations on government designed to protect that liberty in practice — deserves more attention. Clinton Rossiter called it “among the world’s most memorable triumphs in applied political theory.” Charles Maynes wrote that,

Mason’s revolutionary step was…reversing, in writing and in a supreme governmental document, the traditional relationship between citizen and state. Throughout history it had been the citizen who owed duties to the state, which in turn might bestow certain rights on the citizen…Mason argued that the state had to observe certain citizens’ rights that could not be violated under any circumstances. Mason thus set the United States apart from past constitutional practices.

From Declaration of Rights to Declaration of Independence

It is clear that Thomas Jefferson had access to the Virginia Bill of Rights in drafting the Declaration of Independence. He was asked to write a draft on June 11, and probably didn’t begin writing until June 12, the day the Virginia Bill of Rights was approved. The draft text had also been published in different newspapers on June 6, 8, and 12. And then there are the close parallels between the two.

One cannot read the central second paragraph of the Declaration of Independence without hearing echoes of Mason’s Virginia Declaration of Rights. That is why it is no wonder Jefferson, who called Mason “the wisest man of his generation,” wrote in an 1823 letter that, “I did not consider it as any part of my charge to invent new ideas altogether and to offer no sentiment which had ever been expressed before.” Consider the most striking examples.

Section 1: That all men are by nature equally free and independent, and have certain inherent rights, or which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Section 2: That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.

Section 3: That government is, or ought to be, instituted for the common benefit, protection, and security of the people…And that when any government shall be found inadequate or contrary to those principles, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Section 6: Men…cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, not bound by any law to which they have not, in like manner, assented.

Section 15: That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

From Declaration of Rights to Bill of Rights

As clear as the connections of Virginia’s Declaration of Rights to the Declaration of Independence are, those connecting it to the Constitution, particularly the Bill of Rights, are even stronger. As Raymond Polin wrote, “we may regard the original Constitution, the Bill of Rights, and especially Amendments XIII, XIV, XV, and XIX, as ‘necessary’ to implementation of the ideas stated in the Declaration.”

Polin points out that the original articles of the Constitution dealing with separation of branches, republican government and regular elections to legislative and executive offices also reflect Mason’s earlier work. But even more important, as he put it, “provisions that are present in the First Ten Amendments are contained in the Virginia Bill of Rights as well, at times in the very same words,” including Amendments 1, 2, 4, 5, 6 and 8. But the process of getting to that point was far from smooth.

Bills or declarations of rights became popular after the Declaration of Independence. They were adopted in some form by five colonies in 1776, and in every state by 1783. However, the Constitutional Convention did not adopt one. As a result, Mason was one of only three delegates to the Constitutional Convention who refused to sign the final document, most importantly because, “there is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several states, the Declaration of Rights in the separate states are no security.” But his refusal to sign, the objections he offered, and his opposition to ratification without a bill of rights, while causing no small contention, were seminal in creating the Bill of Rights, which Raymond Polin called “the capstone of American constitutionalism,” in 1791.

Because of his recognition that rights did not originate from government, but that liberty instead requires tight constraints on government, George Mason deserves more attention. After all, according to Jeff Broadwater, to the founding generation, “only Washington ranked higher in public esteem.” In Robert Rutland’s words, “His ideas became permeating facts” at America’s founding. They need to again permeate Americans’ political thoughts if we are to revive the liberty he helped create.

George Mason ideas and words were far more influential at America’s founding than in American’s minds today. He saw what government must avoid as more central than what it must do if it is to actually advance our welfare and tried his best to implement that vision, in full recognition of the dangers faced. As he put it,

Happiness and prosperity are now within our reach; but to attain and preserve them must depend upon our own wisdom and virtue…Frequent interference with private property and contracts, retrospective laws destructive of all public faith, as well as confidence between man and man, and flagrant violations of the Constitution must disgust the best and wisest part of the community, occasion a general depravity of manners, bring the legislature into contempt, and finally produce anarchy and public convulsion.

Gary M. Galles is a professor of economics at Pepperdine University. He is the author of The Apostle of Peace: The Radical Mind of Leonard Read.

NOTE: This article was originally published at Mises.org and is reposted here under a Creative Commons 4.0 license

]]>Originalism and Article III Judicial Powerhttp://tenthamendmentcenter.com/2019/06/11/originalism-and-article-iii-judicial-power/
Tue, 11 Jun 2019 15:11:24 +0000http://tenthamendmentcenter.com/?p=28512This is an especially timely issue, because there is an important debate about the administrative state, and a significant part of the administrative state involves adjudication in administrative agencies or in legislative courts. ]]>

One of the most difficult challenges for originalism is to determine to what extent the Constitution limits the adjudication of matters by entities other than Article III federal courts.

This is an especially timely issue, because there is an important debate about the administrative state, and a significant part of the administrative state involves adjudication in administrative agencies or in legislative courts. While the language of the Constitution appears to place real limits on adjudication in these non-article III entities, government practice from the early years of the Constitution appears inconsistent with that interpretation of the constitutional language.

But here comes a new article by originalist scholar, Will Baude, who has employed his formidable talents to understand the Constitution’s original meaning in this area. Baude provides an interpretation of the constitutional text that accounts for the government practice, but still understands the language as imposing significant limits on adjudication outside of Article III federal courts.

Text versus History

The basic issue in this area is that the constitutional text seems to create no exceptions to requiring federal adjudications to be in Article III courts. The Constitution provides that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” This language seems to suggest that all adjudications made by federal entities need to be made by Article III courts. Since the Constitution requires that judges of these courts be given independence and life tenure, this would render much adjudication by administrative agencies and Article I courts unconstitutional.

But historically federal adjudications outside of Article III courts appeared to exist from the beginning. So, if the Framers’ generation understood the Constitution that they wrote, how could they have created these exceptions?

There are two extreme approaches to these matters. Some people have argued that the Framers’ generation simply did not understand the Constitution they enacted. Thus, the historical departures from the separation of powers are unconstitutional. The other approach suggests that the historical departures are constitutional and that they allow for other departures as well. Under this view, the judicial power vesting clause would not place significant limits on what adjudications must be put in Article III federal courts.

Baude avoids these two unattractive positions. The main intellectual move he makes is to argue that “the judicial power of the United States” should not be understood as referring to a procedure that resembles adjudication. Instead, the term is primarily about exercising a type of power. Thus, the fact that administrative law judges or other non-article III actors are taking actions that appear similar to those taken by courts does not matter. Instead, the question is what type of power government actors are exercising rather than the procedures that they are following.

Territorial Courts

One longstanding exception to the requirement that federal adjudications take place in Article III courts is territorial courts. In the early United States, a large portion of the country was comprised of territories that were not yet states. The Supreme Court opined that such courts did not need to be Article III courts, even though they were established by the federal government. How could that be?

Baude argues that these territorial courts were exercising judicial power, but were not exercising the judicial power of the United States. Instead, they were exercising the judicial power of their territory. He presents historical evidence that this is how people understood these courts. The courts of the territory of Florida were exercising the judicial power of Florida. Thus, they did not need to be Article III judges. This also explains why other courts, such as the D.C. Courts and the Indian Courts, do not need to have Article III judges.

Administrative Agencies

A second exception involves adjudications by administrative agencies. These adjudications can involve government benefits and military tribunals. Baude sees these type of adjudications as not exercising the judicial power at all. Instead, they exercise executive power.

Baude argues that adjudications of government benefits, such as public lands or welfare benefits, do not need to be in Article III courts. Either under the Due Process Clause or Article III, common law rights, such as property, contract, and tort, must be adjudicated in federal courts. But government benefits do not need to be in such courts. Thus, it was within Congress’s authority to choose to place the adjudication of such benefits in administrative agencies that exercise executive power.

A similar story applies to two other exceptions. While military tribunals do not involve government benefits, adjudications involving the military were held in ordinary courts even prior to the Constitution. And, thus, this historical exception was incorporated into our charter. Similarly, Baude argues that temporary deprivations of common law rights also did not need to be in Article III courts. For example, in the famous case of Murray’s Lessee, the government’s action against a collector did not initially need to be in federal court, because the collector could file an action in federal court that would fully review the government’s decision.

These exceptions are significant, but notice that they are limited. The federal government cannot simply put any matter into an administrative agency. In particular, common law rights, such as operating a business, cannot be adjudicated in administrative agencies, even though such administrative adjudications are today regularly conducted by agencies such as the SEC or the FTC.

Adjuncts and Consensual Adjudication

Baude argues that a third area where non-Article III judges have been used involves cases where no power is exercised. Thus, adjudications in this area can be conducted by entities that cannot exercise the judicial power of the United States.

One way that an entity might not exercise power is if it acts as an adjunct that does not undertake judicial power. During the 19thCentury, commissioners might undertake tasks, such as accepting bail and affidavits, but they had no arrest or imprisonment powers and therefore did not exercise judicial power.

Another way that an entity might not exercise judicial power is if its decision was by virtue of the consent of the parties. For example, magistrate judges adjudicate civil cases and criminal misdemeanors with the consent of the parties. Similarly, consent underlies private arbitrators that substitute for federal courts. Baude persuasively argues that while consent cannot confer judicial power, it can make judicial power unnecessary.

Implications

There is much more to the paper. But the importance of Baude’s paper is that he makes a persuasive case for showing that there is an interpretation of the constitutional language that conforms to early government practice while at the same placing real limitations on the use of non-Article III courts. Depending on how one resolves some additional issues, the Constitution might prohibit administrative agencies from adjudicating a large number of cases involving common law rights, such as adjudications by the FTC, the SEC, the NLRB, and EPA.

Under this interpretation, the Constitution’s assignment of the judicial power to Article III judges is a real (and not merely symbolic constraint) on government action. And that is a significant accomplishment.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

]]>How our presidential election system workshttp://tenthamendmentcenter.com/2019/06/09/how-our-presidential-election-system-works/
Sun, 09 Jun 2019 12:21:37 +0000http://tenthamendmentcenter.com/?p=28501When Americans go to the polls in November presidential elections, they don’t cast ballots for the president and vice president directly. They chose among slates of presidential electors pledged to different candidates. These electors, in turn, vote the following month for president and vice president. Each state has as many electors as senators and representatives […]]]>

When Americans go to the polls in November presidential elections, they don’t cast ballots for the president and vice president directly. They chose among slates of presidential electors pledged to different candidates.

These electors, in turn, vote the following month for president and vice president.

Each state has as many electors as senators and representatives in Congress. Thus, Pennsylvania’s 18 representatives and two senators entitle it to 20 electors; Wyoming’s single representative and two senators entitle it to three electors. In addition to electors from all the states, three electors are assigned to the District of Columbia, bringing the total to 538. The electors collectively form the Electoral College. (In this context, “college” means an organization, not an educational institution.)

The Constitution grants the electors their sole power and function: to assemble in their respective state capitals to cast ballots for president and vice president. After doing so, they disperse permanently. The entire group never meets in the same place.

To win a presidential or vice presidential election, a candidate must receive an absolute majority of electoral votes—currently 270.

Sometimes, although rarely, the electors split among multiple candidates, so no candidate wins an absolute majority. Consider this hypothetical election:

Candidate A — 200 votes

Candidate B — 180 votes

Candidate C — 88 votes

Candidate D — 70 votes

Total — 538 votes

Candidate A has won a 37 percent plurality—that is, he received more ballots than any other person. But no one has garnered an absolute majority (50 percent plus one). So the Constitution mandates a run-off election in the House of Representatives. The representatives choose among the top three candidates, voting by state delegation (one state/one vote). At least two-thirds of state delegations must be present, and election requires a majority of states (26 of 50).

Similarly, if no candidate for vice president garners an Electoral College majority, the Senate holds a run-off among the top two vote-getters. Two-thirds of all senators must participate, and election requires a majority of all senators (51 of 100).

The majority requirements in the Electoral College and in the run-off elections ensure that our top two officeholders enjoy broad national support.

The Constitution’s framers devoted much attention to how the president and vice president are chosen. They considered many methods—among them direct popular vote, election by Congress, and election by state governors.

Some writers claim the framers adopted an indirect election procedure because they didn’t trust democracy. This is an oversimplification. The framers balanced many factors:

• Enabling the president to make decisions independently of Congress or the states.

• Ensuring the president represents the nation as a whole rather than merely some sections.

• Ensuring that even if the president is not the most popular person in the country, he has enough support to govern.

• Ensuring that election is free from foreign dictates, mob behavior, and excessive influence from special interests.

• Ensuring participation by both national and state constituencies.

• Increasing the chances the president is competent to govern.

After being refined by the 12th amendment (1804), this procedure has worked well.

First, it ensures that the president has widespread public support. The popular vote leader wins more than 90 percent of the time, and usually garners an absolute majority. Since the election of 1864—the first time the people voted for electors in every state—even in multi-candidate elections, no successful candidate has received less than 41 percent of the popular vote.

The system also screens out primarily regional candidates, even when they win narrow popular vote pluralities. It frustrates foreign governments’ efforts to influence elections. It forestalls the mob behavior and special interest influence that might occur if electors met in one place. It also preserves the president’s independence from Congress and the states.

Only in one respect has the method of presidential election disappointed: Electors were supposed to be leaders in their respective states, exercising informed discretion. The idea was to ensure the election of competent presidents. However, most states have laws dictating how electors vote. This explains why electors are often mere party hacks and why some recent presidents haven’t been ideally equipped for the job.

Currently, a group called National Popular Vote (NPV) is promoting a plan to alter the procedure. The group wants state legislatures to make a deal, whereby state voters would no longer choose their own electors. Instead, each state would award its electors to whoever receives a national popular vote plurality.

NPV would impose on the United States the bare plurality-winner method that prevails in Honduras, Mexico, Nicaragua, Panama, Paraguay, the Philippines, and Venezuela.

Experience in those counties shows that the NPV system often results in a candidate winning the presidency even though the overwhelming majority of voters oppose him. For example, in the May, 2019 presidential election in Panama the winner was “elected” with only 33 percent of the votes. The fact that many Americans have accepted NPV testifies to the need for better public education about the Constitution and the constitutional system.

]]>Roe v. Wade Did Not Legalize Abortion in the United Stateshttp://tenthamendmentcenter.com/2019/06/08/roe-v-wade-did-not-legalize-abortion-in-the-united-states/
Sat, 08 Jun 2019 14:38:53 +0000http://tenthamendmentcenter.com/?p=28486The infamous Supreme Court case of Roe v. Wade did not legalize abortion in the United States. Its repeal will not outlaw abortion in the United States. In Roe v. Wade (1973), the Court held that a woman’s right to an abortion fell within the right to privacy protected by the Fourteenth Amendment. States may not ban abortions before […]]]>

The infamous Supreme Court case of Roe v. Wade did not legalize abortion in the United States. Its repeal will not outlaw abortion in the United States.

In Roe v. Wade (1973), the Court held that a woman’s right to an abortion fell within the right to privacy protected by the Fourteenth Amendment. States may not ban abortions before the fetus is determined to be “viable.” The case of Planned Parenthood v. Casey(1992) reaffirmed Roe, and further prohibited states from imposing an “undue burden” on a woman seeking an abortion.

The Hyde Amendment, implemented in 1977, forbids the use of federal Medicaid funds for abortions except in cases of life endangerment, rape, or incest. Some states also provide state funds for abortions in cases of fetal impairment, medical necessity, or to prevent grave, long-lasting damage to the woman’s physical health.

After President Trump appointed Brett Kavanaugh to the Supreme Court, some states, like New York, further liberalized their abortion laws. Other states have done just the opposite.

The governor of Alabama, Kay Ivey, recently signed a bill making the performing of an abortion a felony in nearly all cases. There are no exceptions for rape or incest, only when a woman’s life is in danger.

Eric Johnston, the president of the Alabama Pro-Life Coalition, is responsible for the bill. He was recently interviewed by NPR’s All Things Considered.

According to Johnston, the Alabama law is a vehicle to get the Supreme Court to revisit Roe v. Wade and ultimately to save the lives of unborn children. He expects the law to be held unconstitutional “in the trial court and in the appellate court,” but is “hopeful that the Supreme Court will agree to review the case at that point.”

The Missouri House has passed legislation designed to survive court challenges, which would ban abortions at eight weeks of pregnancy. It includes “exceptions for medical emergencies, but not for pregnancies caused by rape or incest.” Although “women who receive abortions wouldn’t be prosecuted,” “doctors would face five to 15 years in prison.” Missouri’s Republican governor has pledged to sign the bill. Missouri’s Rep. Nick Schroer said his legislation is “made to withstand judicial challenges and not cause them.” The Republican House Speaker, Elijah Haahr, said “the measure was drafted with a legal team and based on previous court rulings across the U.S.”

I have already written about some of the states that have passed “heartbeat bills.”

Abortion supporters and abortion opponents alike have been very careless with their language. I have heard both parties say that Roe v. Wade legalized abortion in the United States. Some abortion opponents think that the repeal of Roe v. Wade would outlaw abortion in the United States. And I suspect that abortion supporters are happy to let them advance that opinion since it furthers their cause when it comes to persuading moderates to keep the status quo.

At least most Americans know that Roe v. Wade was about abortion. I have not seen any recent polls, but a Pew Research Center poll in 2012 found that only 62 percent of Americans and just 44 percent of Americans younger than 30 knew that Roe v. Wadewas about abortion. Some thought the case was about school desegregation, the death penalty, or environmental protection.

Before the Roe v. Wade decision in 1973, abortion was strictly a matter of state law. Thirty states prohibited abortion without exception; sixteen states banned abortion except in the case of rape, incest, life or health threat to mother, and/or fetal impairment; and four states allowed abortions in nearly all cases before the fetus was viable. New York had the most liberal abortion laws, and many women would travel there to have the procedure.

The repeal of Roe v. Wade would fully return the abortion to the states where it belongs. The case should never have reached the Supreme Court to begin with. Conservatives who seek a constitutional amendment to prohibit abortion are absolutely clueless about the nature and structure of government in the United States. There should be no federal legislation to criminalize abortion anymore than there should be federal legislation to criminalize murder, rape, assault, or armed robbery. These are all state matters. Likewise, there should be no attempt by the federal government to regulate or restrict state abortion laws.

It is interesting that liberals want the federal government to override the states when it suits their abortion agenda, but then they want the states to be supreme when it comes to legalizing marijuana if the federal government won’t do it.

Conservatives are no better. They want the federal government to override the states when it suits their drug prohibition agenda, but then they want the states to be supreme when it comes to prohibiting abortion if the federal government won’t do it.

Both of them should have listened to James Madison, who wrote in Federalist No. 45:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Overturning Roe v. Wade will not end abortion in the United States, but it will do several things besides make it harder for women in some states to obtain an abortion. It will partially restore federalism. It will partially limit the power of the federal government. It will show that the Supreme Court is not infallible. But it will also atone for all the sins of Trump in the eyes of die-hard Republican pro-lifers since he nominated Brett Kavanaugh to the Supreme Court.

]]>Lawsuit Update: Why I Keep Fightinghttp://tenthamendmentcenter.com/2019/06/06/lawsuit-update-why-i-keep-fighting/
Thu, 06 Jun 2019 10:00:36 +0000http://tenthamendmentcenter.com/?p=28505In a nutshell, I want oversight and transparency. And no -- I won't defer to the police to decide. I don't trust them. Government agencies determining the extent of their own powers has never ended well.]]>

Yesterday, I attended oral arguments at the Kentucky State Court of Appeals for the lawsuit the City of Lexington, Kentucky, filed against me in an effort to keep its super-secret surveillance cameras, well, super secret.

It was the continuation of a saga that has been going on for nearly two years with no end in sight. So, why do I keep fighting this?

In a nutshell, privacy matters.

First a little background.

In the summer of 2017, I filed an open records request with the Lexington Police Department seeking information on surveillance technology that it owns or operates. I was told the LPD has 29 “mobile surveillance cameras,” but the city refused to divulge any information about them. I appealed the city’s decision to release the records to the attorney general’s office in an opinion issued in September 2017, the AG ruled in my favor and ordered the release of all information on these cameras. Instead of turning the records over to me, the city filed a lawsuit against me in October 2017.

Over the next year, a circuit court judge ruled in my favor not once, but twice. Still, the city refused to relent, so now the case has moved to the appellate court level.

In a nutshell, the police claim that if I know what kind of cameras they have, it will jeopardize “officer safety” and put an undue burden on the city because it will have to buy new cameras once the secret comes out. The circuit court judge ruled that the city did not meet its burden of proof on either grounds.

But during the lower court hearing, the judge denied a motion for an “in camera review.” This would involve the city presenting evidence to the judge in secret so he can better determine if the information should remain, well, secret — out of the public domain.

But in their questions to the attorneys during oral arguments, the issue of how much latitude government agencies should have when it comes to keeping surveillance equipment secret did come up. In fact, the city attorney for Lexington implied that I must be a criminal because, in his view, there is no other reason to want specific information on police department spy-gear.

One of the judges seemed to think police should be able to keep pretty much everything secret if they assert that it should be secret, and we should just trust their word. Luckily, the judges really can’t rule based on their opinion about surveillance during appeal — at least they’re not supposed to. They are bound by the facts of the case present at the lower level, and matters of procedural law. But the judge’s comments were revealing.

The head of the panel seemed more sympathetic to my position. She poked a little fun at the city attorney’s assertion that drug dealers are savvy enough to use my open records info to thwart police. He doubled down, actually saying that if this precedent is set, and the LPD has to reveal information about its surveillance technology, criminals will start doing open records requests to learn about surveillance technology. I resisted the impulse to laugh out loud.

The entire discussion about my reasons for wanting access to this information magnifies my biggest frustration about this case and the reason I continue to fight the city.

A lot of people, including at least one of the judges, don’t seem to understand the inherent threat to our fundamental right to privacy posed by modern surveillance technology.

Our right to privacy logically flows from the principle of self-ownership. If we own ourselves, we have a natural right to keep any aspect of our lives out of public view, to shield any thought or action from the scrutiny of others. The government must meet an extremely high threshold in order to infringe on this fundamental right. That’s why both the U.S. and every state constitution feature provisions prohibiting government invasions of an individual’s privacy with few exceptions, and even then, with strict limits.

Using modern surveillance technology, government agents can gain access to the most intimate details of our lives without us even knowing it.

On the one hand, surveillance provides a great tool for fighting crime. But with it comes an incredible potential for abuse. Given the risks posed to our most fundamental civil liberties, this kind of technology should only be used with oversight and transparency. The community has a right to know what kinds of surveillance tools police use. It has a right to expect that police and other government agencies put policies and procedures in place to ensure oversight and transparency of surveillance programs, to protect collected data, to prevent sharing of such data and to ensure the protection of privacy rights. And communities even have a right to say, “You know, we think the potential risks outweigh the rewards when it comes to a specific technology.”

None of this is possible when can police obtain and use surveillance technology in complete secrecy.

That’s why I want this information. I want to know how, when, why and where police deploy their spy gear. And I want to give the community a voice in determining what level of surveillance they will accept. This remains impossible if police can operate behind a veil of secrecy.

In a nutshell, I want oversight and transparency. And no — I won’t defer to the police to decide. I don’t trust them. Government agencies determining the extent of their own power has never ended well.

Patrick Henry perhaps put it best:

“The liberties of a people never were, nor ever will be, The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. The most iniquitous plots may be carried on against their liberty and happiness.”

We are living the prequel to The Matrix with each passing day, falling further under the spell of technologically-driven virtual communities, virtual realities and virtual conveniences managed by artificially intelligent machines that are on a fast track to replacing us and eventually dominating every aspect of our lives.

In our case, the red pill—a one-way ticket to a life sentence in an electronic concentration camp—has been honey-coated to hide the bitter aftertaste, sold to us in the name of expediency and delivered by way of blazingly fast Internet, cell phone signals that never drop a call, thermostats that keep us at the perfect temperature without our having to raise a finger, and entertainment that can be simultaneously streamed to our TVs, tablets and cell phones.

Yet we are not merely in thrall with these technologies that were intended to make our lives easier. We have become enslaved by them.

Look around you. Everywhere you turn, people are so addicted to their internet-connected screen devices—smart phones, tablets, computers, televisions—that they can go for hours at a time submerged in a virtual world where human interaction is filtered through the medium of technology.

This is not freedom.

This is not even progress.

This is technological tyranny and iron-fisted control delivered by way of the surveillance state, corporate giants such as Google and Facebook, and government spy agencies such as the National Security Agency.

We are living in a virtual world carefully crafted to resemble a representative government, while in reality we are little more than slaves in thrall to an authoritarian regime, with its constant surveillance, manufactured media spectacles, secret courts, inverted justice, and violent repression of dissent.

So consumed are we with availing ourselves of all the latest technologies that we have spared barely a thought for the ramifications of our heedless, headlong stumble towards a world in which our abject reliance on internet-connected gadgets and gizmos is grooming us for a future in which freedom is an illusion.

It’s not just freedom that hangs in the balance. Humanity itself is on the line.

Indeed, while most people are busily taking selfies, Google has been busily partnering with the NSA, the Pentagon, and other governmental agencies to develop a new “human” species.

Cue the dawning of the Age of the Internet of Things, in which internet-connected “things” will monitor your home, your health and your habits in order to keep your pantry stocked, your utilities regulated and your life under control and relatively worry-free.

Between driverless cars that completely lacking a steering wheel, accelerator, or brake pedal and smart pills embedded with computer chips, sensors, cameras and robots, we are poised to outpace the imaginations of science fiction writers such as Philip K. Dick and Isaac Asimov. (By the way, there is no such thing as a driverless car. Someone or something will be driving, but it won’t be you.)

The aim of these internet-connected devices, as Nest proclaims, is to make “your house a more thoughtful and conscious home.” For example, your car can signal ahead that you’re on your way home, while Hue lights can flash on and off to get your attention if Nest Protect senses something’s wrong. Your coffeemaker, relying on data from fitness and sleep sensors, will brew a stronger pot of coffee for you if you’ve had a restless night.

Internet-connected techno gadgets as smart light bulbs can discourage burglars by making your house look occupied, smart thermostats will regulate the temperature of your home based on your activities, and smart doorbells will let you see who is at your front door without leaving the comfort of your couch.

Nest, Google’s $3 billion acquisition, has been at the forefront of the “connected” industry, with such technologically savvy conveniences as a smart lock that tells your thermostat who is home, what temperatures they like, and when your home is unoccupied; a home phone service system that interacts with your connected devices to “learn when you come and go” and alert you if your kids don’t come home; and a sleep system that will monitor when you fall asleep, when you wake up, and keep the house noises and temperature in a sleep-conducive state.

It’s not just our homes that are being reordered and reimagined in this connected age: it’s our workplaces, our health systems, our government and our very bodies that are being plugged into a matrix over which we have no real control.

Moreover, given the speed and trajectory at which these technologies are developing, it won’t be long before these devices are operating entirely independent of their human creators, which poses a whole new set of worries.

As technology expert Nicholas Carr notes, “As soon as you allow robots, or software programs, to act freely in the world, they’re going to run up against ethically fraught situations and face hard choices that can’t be resolved through statistical models. That will be true of self-driving cars, self-flying drones, and battlefield robots, just as it’s already true, on a lesser scale, with automated vacuum cleaners and lawnmowers.”

Unfortunately, in our race to the future, we have failed to consider what such dependence on technology might mean for our humanity, not to mention our freedoms.

Ingestible or implantable chips are a good example of how unprepared we are, morally and otherwise, to navigate this uncharted terrain. Hailed as revolutionary for their ability to access, analyze and manipulate your body from the inside, these smart pills can remind you to take your medication, search for cancer, and even send an alert to your doctor warning of an impending heart attack.

If you were shocked by Edward Snowden’s revelations about how NSA agents have used surveillance to spy on Americans’ phone calls, emails and text messages, can you imagine what unscrupulous government agents could do with access to your internet-connected car, home and medications?

It’s hard to truly appreciate the intangible menace of technology-enabled government surveillance in the face of the all-too-tangible menace of police shootings of unarmed citizens, SWAT team raids, and government violence and corruption.

However, both dangers are just as lethal to our freedoms if left unchecked.

Consider that on any given day, the average American going about his daily business is monitored, surveilled, spied on and tracked in virtually every way by both government and corporate eyes and ears.

Whether you’re walking through a store, driving your car, checking email, or talking to friends and family on the phone, you can be sure that some government agency, whether the NSA or some other entity, will be listening in and tracking your behavior.

This doesn’t even begin to touch on the corporate trackers that monitor your purchases, web browsing, Facebook posts and other activities taking place in the cyber sphere.

In other words, there is no form of digital communication that the government cannot and does not monitor: phone calls, emails, text messages, tweets, Facebook posts, internet video chats, etc., are all accessible, trackable and downloadable by federal agents.

The government and its corporate partners-in-crime have been bypassing the Fourth Amendment’s prohibitions for so long that this constitutional bulwark against warrantless searches and seizures has largely been rendered antiquated and irrelevant.

We are now in the final stage of the transition from a police state to a surveillance state.

Having already transformed local police into extensions of the military, the Department of Homeland Security, the Justice Department and the FBI are in the process of turning the nation’s police officers into techno-warriors, complete with iris scanners, body scanners, thermal imaging Doppler radar devices, facial recognition programs, license plate readers, cell phone Stingray devices and so much more.

Add in the fusion centers and real-time crime centers, city-wide surveillance networks, data clouds conveniently hosted overseas by Amazon and Microsoft, drones equipped with thermal imaging cameras, and biometric databases, and you’ve got the makings of a world in which “privacy” is reserved exclusively for government agencies.

In other words, the surveillance state that came into being with the 9/11 attacks is alive and well and kicking privacy to shreds in America. Having been persuaded to trade freedom for a phantom promise of security, Americans now find themselves imprisoned in a virtual cage of cameras, wiretaps, sensors and watchful government eyes.

Just about every branch of the government—from the Postal Service to the Treasury Department and every agency in between—now has its own surveillance sector, authorized to spy on the American people.

And of course that doesn’t even begin to touch on the complicity of the corporate sector, which buys and sells us from cradle to grave, until we have no more data left to mine. Indeed, Facebook, Amazon and Google are among the government’s closest competitors when it comes to carrying out surveillance on Americans, monitoring the content of your emails, tracking your purchases and exploiting your social media posts.

“Few consumers understand what data are being shared, with whom, or how the information is being used,” reports the Los Angeles Times. “Most Americans emit a stream of personal digital exhaust — what they search for, what they buy, who they communicate with, where they are — that is captured and exploited in a largely unregulated fashion.”

It’s not just what we say, where we go and what we buy that is being tracked.

We’re being surveilled right down to our genes, thanks to a potent combination of hardware, software and data collection that scans our biometrics—our faces, irises, voices, genetics, even our gait—runs them through computer programs that can break the data down into unique “identifiers,” and then offers them up to the government and its corporate allies for their respective uses.

For instance, imagine what the NSA could do (and is likely already doing) with voiceprint technology, which has been likened to a fingerprint. Described as “the next frontline in the battle against overweening public surveillance,” the collection of voiceprints is a booming industry for governments and businesses alike. As The Guardian reports, “voice biometrics could be used to pinpoint the location of individuals. There is already discussion about placing voice sensors in public spaces, and … multiple sensors could be triangulated to identify individuals and specify their location within very small areas.”

Total control over every aspect of our lives, right down to our inner thoughts, is the objective of any totalitarian regime.

George Orwell understood this. His masterpiece, 1984, portrays a global society of total control in which people are not allowed to have thoughts that in any way disagree with the corporate state. There is no personal freedom, and advanced technology has become the driving force behind a surveillance-driven society. Snitches and cameras are everywhere. And people are subject to the Thought Police, who deal with anyone guilty of thought crimes. The government, or “Party,” is headed by Big Brother, who appears on posters everywhere with the words: “Big Brother is watching you.”

Make no mistake: the Internet of Things is just Big Brother in a more appealing disguise.

Now there are still those who insist that they have nothing to hide from the surveillance state and nothing to fear from the police state because they have done nothing wrong. To those sanctimonious few, secure in their delusions, let this be a warning: the danger posed by the American police state applies equally to all of us, lawbreaker and law-abider alike.

In an age of too many laws, too many prisons, too many government spies, and too many corporations eager to make a fast buck at the expense of the American taxpayer, there is no safe place and no watertight alibi.

]]>Can the Supreme Court Review Impeachments?http://tenthamendmentcenter.com/2019/06/03/can-the-supreme-court-review-impeachments/
Mon, 03 Jun 2019 19:09:21 +0000http://tenthamendmentcenter.com/?p=28496"The Constitution does not permit impeachment for anything other than high crimes and misdemeanors."]]>

President Trump has said that if the House were to impeach him despite his not having committed “high crimes and misdemeanors,” he might seek review of such an unconstitutional action in the Supreme Court. On April 24, he tweeted that if “the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only are there no ‘High Crimes and Misdemeanors,’ there are no Crimes by me at all.”

…

Commentators have accused Trump of not understanding the way impeachment works and have stated quite categorically that the courts have no constitutional role to play in what is solely a congressional and political process. Time magazine declared in a headline “That’s Not How It Works,” and Vox called the president’s argument “profoundly confused.”

Scholars also echoed the derision. The influential legal blog Lawfare wrote confidently that “The Supreme Court Has No Role in Impeachment,” and my friend and colleague Larry Tribe, an eminent constitutional law scholar, called Trump’s argument simply “idiocy,” explaining that “the court is very good at slapping down attempts to drag things out by bringing it into a dispute where it has no jurisdiction.”

Not so fast. Our nonlawyer president may be closer to the truth than his lawyer critics. …

And from later on:

The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.

Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.

From an originalist perspective, I agree. (At least in part.)

The Constitution does not permit impeachment for anything other than high crimes and misdemeanors. Let’s suppose that the House impeaches the President for something he claims is not a high crime or misdemeanor under the original meaning of those words. (I’m assuming that the question is whether conduct X is a high crime or misdemeanor, not whether the President committed conduct X).

Is this the type of question a court ordinarily could hear? Professor Dershowitz says yes, and I agree. It’s a pure (although perhaps difficult) legal question of the meaning of the Constitution’s text.

A key case is the Supreme Court’s decision in Zivotofsky v. Clinton, involving the scope of the President’s recognition power. The President objected that the case was a so-called “political question” and thus inappropriate from judicial review. (This is also the argument scholars are making against the idea of judicial review of impeachments). But the Court in Zivotofsky rejected the political question claim, saying that since the case involved a pure legal question of the meaning of the Constitution’s text (there, the scope of the President’s power to receive ambassadors), it was something the courts could decide.

And I agree with Professor Dershowitz that this follows from Marbury v. Madison and the courts’ Article III “judicial Power” to say what the law is.

The counterargument (made in the posts linked above) is that the Constitution’s text gives Congress non-reviewable power over impeachments (in a way that it doesn’t give non-reviewable power over other legal questions, like the one in Zivotofsky, to the other branches). Specifically, Article I, Section 2 says that the House “shall have the sole Power of Impeachment.”

I do think this gives the House substantial non-reviewable discretion over many aspects of impeachment (more on that below). But deciding the meaning of the constitutional phrase “high Crimes and Misdemeanors” is not part of the “Power of Impeachment.” It is instead a prerequisite to the exercise of the power of impeachment. And it is a pure question of law, not a question of the exercise of discretion committed to the House.

In contrast, much of the impeachment process does involve the exercise of the House’s discretion. Whether to initiate impeachment proceedings, how to conduct the proceedings, and what result to reach are all matters for the House to decide, employing the discretion committed to the House by Article I, Section 2. In particular — and here I disagree with Professor Dershowitz and the President — the House has discretion to decide whether the facts establish that the President has committed an impeachable offense.

That is, if the question is not whether conduct X is a high crime or misdemeanor but rather whether the President has committed conduct X, I think that is a political question committed to the House and is not reviewable by the courts. A key point of the impeachment clause is to shift the adjudicatory aspects of the impeachment process to the political branches.

Again, this distinction comes from Marbury, and I think it reflects the correct original power of the courts conveyed by Article III to say what the law is, but not to interfere with the exercise of discretion committed to the political branches. In the part of Marbury that is the foundation of the political question doctrine, Chief Justice Marshall explained that the courts could not review exercises of discretion by the executive branch.

Whether the executive made the correct answer or not, he was answerable in his political capacity to the people, not to the courts. But where the question is the meaning of a law (including the Constitution), that matter is committed to the courts and does not involve any discretion in the executive.

For what it’s worth, I’ve made a closely parallel argument regarding the justiciability of the President’s war power in this article: War Powers Litigation after Zivotofsky v. Clinton. My argument there is that courts can review war powers questions that are pure questions of law, such as the scope of the declare war clause, but should not review questions regarding the conduct of war that involve matters of presidential discretion.

The impeachment context involves actions of Congress rather than actions of the President, but the principle should be the same. If the question is what the Constitution’s text means, the courts have the constitutional power to answer it.

NOTE:This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

]]>Trump Tariffs Smack Taxpayers With a Double-Whammyhttp://tenthamendmentcenter.com/2019/06/01/trump-tariffs-smack-taxpayers-with-a-double-whammy/
Sat, 01 Jun 2019 18:57:13 +0000http://tenthamendmentcenter.com/?p=28489The domestic damage done by President Donald Trump’s imposition of tariffs on Chinese goods will now be exacerbated by the president’s proclamation of his intent to blunt the blow by giving a multi-billion dollar bailout to farmers affected by the fallout. You read that right. Not only are American consumers going to bear the burden […]]]>

The domestic damage done by President Donald Trump’s imposition of tariffs on Chinese goods will now be exacerbated by the president’s proclamation of his intent to blunt the blow by giving a multi-billion dollar bailout to farmers affected by the fallout.

You read that right.

Not only are American consumers going to bear the burden of President Trump’s trade war with China; they are going to be charged twice, as the president will take $16 billion in tax money to dole out subsidies to the country’s farmers.

In fairness, the president still believes that the tariffs he unilaterally and unconstitutionally imposed on Beijing will be paid for by the Chinese.

“Just so you understand,” Trump said, “These tariffs are paid for largely by China. A lot of people like to say by ‘us,’” he added during his announcement of the farm subsidy scheme.

Sadly, history and math don’t back up the president’s prediction.

Consider this Mises Institute recap of the recent impact on farmers of the ongoing Sino-American trade war.

When China, the European Union, and other important trading partners announced that they would cease or scale back their imports of U.S. agricultural products, prices spiraled down. By September 2018, soybeans had cratered 20%, corn had tumbled 12%, and wheat had fallen 10%. While these commodities have slightly recovered, they are still below their pre-trade-war levels.

Farmers had two main issues throughout the summer: They had nowhere to sell their goods. If they did sell their products, they took a steep loss in lower crop prices.

Hoping to weather the storm, farmers had no other choice but to store their immense inventories of soybeans and grains. They were optimistic, reading every report that claimed a trade deal was imminent. What they got instead were rotting storages and a $12 billion government handout , an insult to these men, women, and families who prefer to partake in commerce rather than depend on the state.

The trade battle began to take its toll on these farms once autumn arrived.

In November, the Federal Reserve Bank of Minnesota found that farm belt bankruptcies had surged. It was reported that nearly 100 farm businesses in Minnesota, Montana, North Dakota, South Dakota, and Wisconsin filed for Chapter 12 bankruptcy. Overall, according to The Wall Street Journal , the Seventh Circuit Court of Appeals processed double the number of insolvency filings from farmers last year; the Tenth Circuit witnessed a 56% jump in 2018.

This trend was inevitable after U.S. farm debt topped $400 billion, a figure not seen since the 1980s, when Chapter 12 bankruptcy was established to assist farmers in coming up with ways to pay off their debts within five years. Moreover, the Department of Agriculture estimated that the typical American farmer household lost more than $1,500 last year, and their incomes are 35% lower than in 2013.

The long and short of that summary is that soybean farmers saw their sales to China plummet to practically zero as a result of the president’s punishment of China. Then, adding insult to injury, President Trump’s solution to the soybean farmers’ economic evisceration was to force Americans to pay for his hubris by bankrolling a $12 billion bailout.

Now, in Round 2 of the Battle with Beijing, President Trump is throwing the same one-two punch combination: spike American agricultural sales to the world’s second-most powerful economy (not to mention the world’s most populous country), then stick the American taxpayer with the tab. Only this time, the bill has ballooned to $16 billion, an increase of over 133 percent!

Writing for LibertyNation.com, economics correspondent Andrew Moran called conservative icon former President Ronald Reagan as his star witness in his case against the current president’s trade tack.

“In his weekly radio address in August 1985, then-President Ronald Reagan warned about the dangers of placing tariffs and quotas on foreign shoe imports,” Moran writes. “He explained that protectionist policies always lead to long-term hidden costs that make protected industries weaker and harm the consumer.”

“Instead of protectionism, we should call it destructionism. It destroys jobs, weakens our industries, harms exports, costs billions of dollars to consumers, and damages our overall economy,” Reagan explained during the radio address quoted by Moran.

It’s one thing for a Republican to disagree with Donald Trump, but it’s another thing altogether to convince one to criticize Ronald Reagan. So, when Reagan paints a plan like that being followed by President Trump as “destructionism,” one would think the GOP rank-and-file would call on the current Oval Office occupant to reconsider his trade policy and the potential knock-out blow that that policy could deal to farmers and every other taxpayer in America.

Reagan and Trump may disagree on the wisdom of protectionist trade policies, but no one can deny the decay these policies have caused in the agricultural sector, particularly family farms.

Here’s a harrowing and heartbreaking facet of the farm subsidy story told by Moran in an article published in March:

“Simply put, the domestic agriculture sector may take years to recover fully. Perhaps this alone is contributing to the increasing suicide rates in the profession. It is true that the rate was already high before the trade war – 84.5 per 100,000 people – but experts contend that this bad situation might get worse.

“Jennifer Fahy, communications director with Farm Aid, said in an interview with CBS News:

“‘The farm crisis was so bad, there was a terrible outbreak of suicide and depression. [Today] I think it’s actually worse. We’re hearing from farmers on our hotline that farmer stress is extremely high. Every time there’s more uncertainty around issues around the farm economy is another day of phones ringing off the hook.’”

So, beside the bewildering fact that the president has somehow convinced conservatives to pay double for his protectionist policies by supporting tariffs — the cost of which is always borne by American consumers — and supporting federal farm bailouts — also charged to the taxpayer, but his mathematically and constitutionally suspect strategy could do permanent damage to our country’s farmers and to its financial future.

The last word will go to one of the Founding Era’s most insightful constitutional scholars and U.S. Senator John Taylor of Caroline, who simplified the confusion question of who pays for tariffs and how they always hurt agriculture:

Intricate as the science of political economy has been rendered, by the artifices of exclusive privileges, it yet contains some principles so undeniable, as to explode the whole mass of partial and perplexing calculations, used to conceal or evade them.

Among these principles the most important is, that land is the only, or at least the most permanent source of profit; and its successful cultivation the best encourager of all other occupations, and the best security for national prosperity. If this principle can maintain itself against the sophistry of exclusive privileges in any country, it must be in the United States.

If the cultivation of land flourishes, all other occupations prosper; if it languishes, they decay.

]]>What Happened to the Freedom of Speech?http://tenthamendmentcenter.com/2019/05/30/what-happened-to-the-freedom-of-speech/
Thu, 30 May 2019 21:02:36 +0000http://tenthamendmentcenter.com/?p=28490Madison knew that when he wrote, "Congress shall make no law abridging ... the freedom of speech, or of the press" he and the ratifiers meant no law.]]>

“Congress shall make no law…
abridging the freedom of speech,
or of the press…”
– First Amendment to the U.S. Constitution

When James Madison agreed be the scrivener at the Constitutional Convention during the summer of 1787, he could not have known that just three years later he’d be the chair of the House of Representatives committee whose task it was to draft the Bill of Rights.

In doing so, he insisted that the word “the” precede the phrase “freedom of speech” in what was to become the First Amendment, so as to reflect its preexistence; meaning, the freedom of speech preexisted the United States. Madison believed that the pre-political rights, which he enumerated in the Bill of Rights are natural to our humanity, and he articulated as much in the Ninth Amendment, and in his speeches in support of the ratification of what would become the first 10 amendments.

Madison knew that when he wrote, “Congress shall make no law abridging … the freedom of speech, or of the press” he and the ratifiers meant no law. As direct and unambiguous as those words are — the Constitution as amended is the supreme law of the land — Congress and the courts have not always been faithful to them.

Thus, at the height of the anti-immigrant hysteria whipped up by President Woodrow Wilson and his supporters, Congress enacted the Espionage Act of 1917, which punished speech deemed harmful to America’s war efforts. Wilson was determined to win the First World War at the price of the suppression of ideas that he hated or feared.

The Espionage Act was used aggressively and successfully (from Wilson’s vantage point) during the war and in the immediate years following. Then, a series of Supreme Court decisions instructed that the Act is probably unconstitutional as its sole purpose and effect is to suppress speech. These opinions harkened back to Madison, who believed that the only moral and constitutional remedy for hateful or harmful or even seditious speech was not suppression and punishment but rather more speech.

That attitude prevailed generally in the legal and judicial communities and at the Department of Justice for a few generations — even during World War II — until now. Now, the Trump DOJ has indicted a non-American whose alleged crimes took place in Europe for numerous violations of the Espionage Act, and it has done so in direct defiance of a Supreme Court decision that ruled against this during the Nixon years.

The non-American is Julian Assange, a radical and unorthodox publisher of truthful information that often exposes the hypocrisy of government. His entity for exposure is WikiLeaks — the website known for receiving stolen data and for posting true and accurate copies of them.

It was Assange and WikiLeaks that published the infamous Democratic National Committee emails in October 2016, which contained the “dirt” on Hillary Clinton once offered by Russian agents to Trump campaign officials, and for which then-candidate Trump lavished public praise on WikiLeaks.

Yet, back in 2010, Assange arranged to receive and publish stolen copies of top secret military materials that revealed American military personnel in Afghanistan at their worst. It showed them knowingly killing innocent civilians — and doing so gleefully. The data that Assange revealed had been stolen for him by an Army private then named Bradley Manning. Manning was tried and convicted of the theft and was sentenced to 35 years in a military prison, much of it in solitary confinement. In January 2017, President Barack Obama commuted Manning’s sentence to time served.

If this sounds a bit like history repeating itself from the Nixon years, it is. In 1971, Daniel Ellsberg, a civilian employee of the Nixon Department of Defense, revealed that he had stolen thousands of pages of top secret materials showing that former President Lyndon B. Johnson and some of his generals had serially lied to the American public and to Congress about the Vietnam War.

When he delivered the stolen materials to The New York Times and to The Washington Post for publication, and the Nixon DOJ got wind of the delivery, it persuaded two federal judges to enjoin the publication of the documents.

In a landmark decision, known as the Pentagon Papers case, the Supreme Court ruled that a publisher may reveal whatever materials come into the publisher’s possession, no matter how they got there, so long as the materials are themselves material to the public interest.

Stated differently, the thief — Ellsberg then, Manning today — can be tried for theft, but the publisher is absolutely protected by the “no law” language of the First Amendment. Ellsberg was indicted and prosecuted, but the charges were dismissed by a federal judge whose conscience was shocked when he learned that FBI agents broke into the office of Ellsberg’s psychiatrist to get “dirt” on him.

Assange is also protected by the values underlining that “no law” language. The whole purpose of the First Amendment, numerous courts have written, is to promote and provoke open, wide, robust political debate about the policies of the government. That simply cannot be done when government operates in secret. Even when publishers tell the possessors of state secrets how to deliver them — as Times and Post reporters surely did to Ellsberg — they cannot be silenced or punished.

Why was Assange indicted? Government killers are a mob, and mobs love anonymity. Assange assaulted their love by ending that anonymity. When the government kills and rejoices and lies about it in our names, we have a right to know of its behavior. Democracies spy on us all, yet they persist in punishing, to the ends of the earth, those who dare to shine a light upon them. Tyrannies do the same.

]]>Today in History: Patrick Henry Bornhttp://tenthamendmentcenter.com/2019/05/29/today-in-history-patrick-henry-born/
Wed, 29 May 2019 17:47:22 +0000http://tenthamendmentcenter.com/?p=28487Known as “Hot Head” and “The Voice of the Revolution,” Henry was a renowned Virginian whose talents as a lawyer and politician were matchless.]]>

Today in History, on May 29 1736, Patrick Henry was born. Known as “Hot Head” and “The Voice of the Revolution,” Henry was a renowned Virginian whose talents as a lawyer and politician were matchless. Henry had an uncanny penchant for fiery oratory, using his skills to persuade Virginians to adopt the patriot cause.

During the Stamp Act Crisis, he proposed a set of resolutions that would effectively undermine the controversial policy’s legitimacy and nullify enforcement of the act within the state. While Henry produced a valid argument that the Stamp Act was contrary to the constitutional boundaries of the British system, some considered his resolutions seditious. When accused of treason, Patrick Henry stated: “Caesar had his Brutus, Charles the First his Cromwell, and George the Third…may he profit by their example.”

As tensions between the American colonies and the crown came to a boiling point, Henry was pivotal in the colony’s transition to republicanism when a schism emerged between Henry and Virginia’s Royal Governor, Lord Dunmore, after the latter dissolved the colony’s legislature. Playing a leading role in the Virginia Conventions of 1774-1776, Henry worked to undermine royal authority by organizing boycotts of British goods, preparing companies of militia to begin mustering in preparation for potential conflict, and challenging the Tory doctrine of Parliamentary Sovereignty – which declared that British Parliament could bind the colonies “in all ways whatsoever.”

As a delegate to the Continental Congress, Henry emerged as a radical voice that vied with conservatives like Joseph Galloway and John Dickinson – both of which sought a peaceful reconciliation with Britain. Henry’s deeds were also instrumental in convincing the Old Dominion to adopt a course of independence and commit its militia to the cause. The culmination of this decision came after an infamous speech in St. John’s Church on March 20, 1775. There, the ardent Henry implored the delegates to engage Britain directly. “There is no retreat but in submission and slavery,” he warned:

“Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come…It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”

By all accounts, the event was a watershed moment for Virginia. Several men that would rise to great prominence in the young republic were in attendance, including George Washington, Thomas Jefferson, and St. George Tucker. Regardless of their political allegiances, all were profoundly captivated.

According to Edmund Randolph, the convention sat in silent consideration of Henry’s words for several minutes. Much of the Virginia General Assembly was stunned by the provocative nature of Henry’s comments, and Henry was even accused of treason by some. Despite these objections, the resolutions Henry offered passed by the narrowest of margins, with popular figures such as George Washington and Richard Henry Lee voting in favor. On the dawn of independence, Virginia joined the military cause against the British.

By 1776, after Lord Dunmore had been ejected from the colony for fear of his life, the Virginia Convention dissolved all political ties with Great Britain. The fiery Henry generally aligned with George Mason, the primary author of the Commonwealth’s new Declaration of Rights and republican constitution. In May of 1776, Henry was elected the state’s first republican governor by the Virginia House of Delegates.

Henry was undoubtedly the strongest political force of his time in Virginia, and one of the most famous figures of the era. He found such success in opposing the political aims of Thomas Jefferson and James Madison in the 1780s that the former once remarked the only political hope was to pray for Henry’s death. While not everyone agreed with all of Henry’s political views, they certainly realized his influence and popularity.

Henry was also known for his strong opposition to the United States Constitution. When called as a delegate to the Philadelphia Convention, Henry’s response was to decline, believing he “smelled a rat.” Henry was convinced that a subset of delegates would attempt to impose a nationalistic government and usurp the powers of Virginia, and prognosticated that the convention would “oppress and ruin the people.” Henry attacked the possibility of a direct taxation power, congressional control over state militia, and the creation of an executive office. Along George Mason, he was a strong proponent of a bill of rights, considering its inclusion as a necessity should the Constitution be considered.

While he did not particularly like Patrick Henry, Jefferson later wrote in reflection of his oratory: “It is not now easy to say what we should have done without Patrick Henry. He was before us all in maintaining the spirit of the Revolution.”

]]>Geofence Warrants: A High-Tech Repeat From the Revolutionhttp://tenthamendmentcenter.com/2019/05/27/geofence-warrants-a-high-tech-repeat-from-the-revolution/
Mon, 27 May 2019 09:44:59 +0000http://tenthamendmentcenter.com/?p=28478Judges across the U.S. are issuing search warrants that effectively authorize police to search broad geographical areas to determine who was near a given place at a given time. In practice, these warrants give police permission to use Google location data to engage in massive fishing expeditions and subject hundreds, if not thousands, of innocent […]]]>

Judges across the U.S. are issuing search warrants that effectively authorize police to search broad geographical areas to determine who was near a given place at a given time. In practice, these warrants give police permission to use Google location data to engage in massive fishing expeditions and subject hundreds, if not thousands, of innocent people to police location tracking.

Prior to the American Revolution, the British claimed the authority to issue Writs of Assistance allowing government agents to enter private homes and businesses to search for evidence of smuggling. These general warrants did not specify the place to be searched, nor limit what these government agents could search for. They never expired and were considered a valid substitute for specific search warrants. Writs of Assistance were also transferable to other officials. They basically served as a go anywhere and do anything permission slip for government agents.

These general warrants were an early flashpoint between the British government and American colonists in the years leading up to the War for Independence. While the modern location tracking warrants issued today by both federal and state judges don’t give police powers quite as broad as Writs of Assitance gave British customs agents, they come very close.

Today, officials call them “geofence” warrants. In practice, judges issue warrants authorizing police to search Google’s massive location tracking database for all of the phones within a given geographical area during a specific timeframe. According to the New York Times, federal agents first utilized the practice in 2016.

According to the Times, these broadly construed warrants help police pinpoint possible suspects and witnesses in the absence of other clues. Google employees said the company often responds to a single warrant with location information on dozens or hundreds of devices.

North Carolina produced the first public reports of this investigative tactic last year after detectives obtained warrants to obtain location data for all the phones that were in the area of two shootings. According to WRAL, “On a satellite image, they drew shapes around the crime scenes, marking the coordinates on the map. Then they convinced a Wake County judge they had enough probable cause to order Google to hand over account identifiers on every single cell phone that crossed the digital cordon during certain times.”

Police did not demand information on specific suspects. As WRAL put it, investigators got information about “any mobile devices that veered too close to the scene of a crime.”

In many cases, geofence warrants come with gag orders. According to WRAL, “These warrants often prevent the technology giant for months from disclosing information about the searches not just to potential suspects, but to any users swept up in the search.”

The Google database known as Sensorvault holds detailed location records of at least “hundreds of millions of devices worldwide” dating back nearly a decade, according to Google employees interviewed by the New York Times. One employee told the Times the company has received as many as 180 requests for location information in a single week.

Police say this investigative tactic can help break cases open. But in fact, it unwittingly sweeps hundreds or thousands of innocent people into a criminal investigation. These individuals suddenly find themselves in police crosshairs merely for the simple act of walking or driving through a given location at a given time.

And of course, this kind of data is imprecise. The New York Times opened its report on geofence warrants with the story of an Arizona man whom police arrested in a murder investigation based on location data and other circumstantial evidence. He spent a week in jail before investigators realized they had the wrong guy.

A San Mateo County, California, Sheriff’s Office intelligence analyst admitted that although Google’s data-cache is enormous, it doesn’t sweep up every phone in the area, and even if a location is recorded every few minutes, that may not coincide with a crime. Furthermore, the fact that a device was in a given place doesn’t tell you who had it at the time.

Brooklyn Park, Minnesota Deputy Police Chief Mark Bruley called these warrants a “game-changer.” And his comments reveal just who intrusive these warrants are.

“It shows the whole pattern of life.”

The founders included the Fourth Amendment in the Bill of Rights because they vividly remembered the abuse they suffered at the hands of British agents wielding general warrants. To prevent a repeat performance, they insisted that government agents must meet a high level of specificity before subjecting a person to search or arrest. Using a warrant to access information that “shows the whole pattern of life” shreds these fundamental limits on government power.

]]>Doing Violence to the Constitutionhttp://tenthamendmentcenter.com/2019/05/25/doing-violence-to-the-constitution/
Sat, 25 May 2019 15:20:21 +0000http://tenthamendmentcenter.com/?p=28480A common trick of big-government loving politicians is to give legislation names so appealing that it seems no reasonable person could oppose it.]]>

A common trick of big-government loving politicians is to give legislation names so appealing that it seems no reasonable person could oppose it.

The truth is, the more unobjectionable the title, the more objectionable the content. Two well-known examples are the “PATRIOT Act” and the “Access to Affordable and Quality Care Act.”

Another great example is the Violence Against Women Act. Passed in 1994, the Violence Against Women Act provides federal grants to, and imposes federal mandates on, state and local governments with the goal of increasing arrests, prosecutions, and convictions of those who commit domestic violence.

Like most federal laws, the Violence Against Women Act is unconstitutional. The Constitution limits federal jurisdiction to three crimes: counterfeiting, treason, and piracy. All other crimes — including domestic violence — are strictly state and local matters.

The law also forbids anyone subject to a restraining order obtained by a spouse or a domestic partner from owning a gun. This is a blatant violation of the Second Amendment’s prohibition on federal laws denying anyone the right to own a gun. Whether someone subject to a restraining order, or convicted of a violent crime, should lose their rights to own firearms is a question to be decided by state and local officials.

At least the current law requires individuals receive due process before the government can deprive them of their Second Amendment rights. The House of Representatives recently passed legislation reauthorizing and making changes to the Violence Against Women Act. The most disturbing part of this “upgrade” gives government the power to take away an individual’s Second Amendment rights based solely on an allegation that the individual committed an act of domestic violence. The accused then loses Second Amendment rights without even having an opportunity to tell their side of the story to a judge.

This is a version of “red flag” laws that are becoming increasingly popular. Red flag laws are not just supported by authoritarians like Senators Diane Feinstein and Lindsey Graham, but by alleged “constitutional conservatives” like Sen. Ted Cruz.

Red flag laws have led to dangerous confrontations between law enforcement and citizens who assumed that those breaking into their property to take their guns are private, rather than government, thieves.

The House bill also expands red flag laws to cover those accused of “misdemeanor stalking.” Many jurisdictions define misdemeanor stalking to include “cyber” or online stalking. These means someone could lose Second Amendment rights for sending someone an “offensive” Facebook or Twitter message.

Forbidding someone from owning a firearm because of offensive social media posts sets a precedent that could be used to impose legal sanctions on those posting “hate speech.” Since hate speech is defined as “speech I don’t agree with,” this could lead to the de facto outlawing of free speech online.

Instead of addressing concerns over the inclusion of new red flag type laws in the Violence Against Women’s Act, proponents of the bill have smeared their critics as not caring about domestic violence. As Reason magazine senior editor Jacob Sullum has pointed out, these progressives sound like neoconservatives who smear PATRIOT Act opponents as allies of Al Qaeda.

All decent people oppose domestic violence and terrorism. However, the desire to catch and punish wrongdoers does not justify violating the Constitution or denying anyone due process. When government violates the rights of anyone it threatens the liberties of everyone.

]]>How the Fed Wrecks the Economyhttp://tenthamendmentcenter.com/2019/05/23/how-the-fed-wrecks-the-economy/
Thu, 23 May 2019 10:09:13 +0000http://tenthamendmentcenter.com/?p=28457The only way to put the economy on a sound footing is to deal with the root cause of the problem -- the Federal Reserve and its constant meddling]]>

When people talk about the economy, they generally focus on government policies such as taxation and regulation. For instance, Republicans credit Pres. Trump’s tax cuts for the seemingly booming economy and surging stock markets. Meanwhile, Democrats blame “deregulation” for the 2008 financial crisis. While government policies do have an impact on the direction of the economy, this analysis completely ignores the biggest player on the stage – the Federal Reserve.

You simply cannot grasp the economic big-picture without understanding how Federal Reserve monetary policy drives the boom-bust cycle. The effects of all other government policies work within the Fed’s monetary framework. Money-printing and interest rate manipulations fuel booms and the inevitable attempt to return to “normalcy” precipitates busts.

In simplest terms, easy money blows up bubbles. Bubbles pop and set off a crisis. Rinse. Wash. Repeat.

In practice, when the economy slows or enters into a recession, central banks like the Federal Reserve drive interest rates down and launch quantitative easing (QE) programs to “stimulate” the economy.

Low interest rates encourage borrowing and spending. The flood of cheap money suddenly available allows consumers to consume more – thus the stimulus. It also incentivizes corporations and government entities to borrow and spend. Coupled with quantitative easing, the central bank can pump billions of dollars of new money into the economy through this loose monetary policy.

In effect, QE is a fancy term for printing lots of money. The Fed doesn’t literally have a printing press in the basement of the Eccles Building running off dollar bills, but it generates the same practical effect. The Federal Reserve digitally creates money out of thin air and uses the new dollars to buy securities and government bonds, thereby putting “cash” directly into circulation. QE not only boosts the amount of money in the economy; it also has a secondary function. As the Federal Reserve buys U.S. Treasury bonds, it monetizes government debt. The central bank can also buy financial instruments like mortgage-backed securities as it did during QE1 in 2008. This effectively serves as a bank bailout. Big banks get to remove these worthless assets from their balance sheets and shift them to the Fed’s. Theoretically, this makes the banks more solvent and encourages them to lend more money to ease the credit crunch that occurs when banks become financially shaky.

This monetary policy results in a temporary boom. All of that new money has to go somewhere. It could result in rising consumer prices (inflation), but generally, it pumps up the price of assets such as real estate and stock markets, creating a fake wealth effect. People feel wealthier because they see the value of their assets rapidly increasing. With plenty of debt-driven spending and rapidly increasing asset prices, the economy grows, sometimes at a staggeringly fast rate.

This process also creates inequality. The first receivers of this new money – generally bankers and politically-connected individuals and institutions – get the most direct benefit from the newly-minted dollars. Their decisions on where to spend the money create artificially high demand in the chosen industries or asset classes. Think the housing market in the years leading up to ’08 or tech companies during the dot-com boom. This amplifies distortions in the capital structure. The first receivers also get to spend the new money before the inflationary effects take hold and prices rise. Those who receive the money later on down the line, say through pay raises, don’t get the same benefits as the first users. Price inflation eats up their gains.

Meanwhile, surging economic growth, shrinking unemployment and rising stock markets driven by money-creation give the illusion of a healthy economy, but the monetary policy hides the economic rot at the foundation.

In order to sustain an economic expansion, you need capital goods — factories, machines, natural resources. Capital goods are produced through savings and investment. When central banks juice consumption without the requisite underlying capital structure, it will eventually become impossible to maintain. You can print all the dollars you want, but you can’t print stuff. At some point, the credit-driven expansion will outstrip the available stock of capital. At that point, the house of cards begins to collapse.

Imagine you plan to build a giant brick wall. With interest rates low and credit readily available, you borrow all the money you need to complete the job. But two-thirds of the way through, a brick shortage develops. You may have plenty of money, but you’ve got no bricks. You can’t finish your project.

This scenario provides a simplified picture of what happens in the economy during a Fed-fueled economic expansion. Flush with cash, investors begin all kinds of projects they will never be able to complete. Eventually, the malinvestments become apparent and the boom teeters and then collapses into a bust.

Of course, the Fed helps this process along as well.

Once the apparent recovery takes hold, the Fed tightens its monetary policy. It ends QE programs and begins to nudge interest rates back up. When the recovery appears to be in full swing, the central bank may even shift to quantitative tightening — shrinking its balance sheet. During the boom, governments, consumers and companies pile up enormous amounts of debt. Rising interest rates increase the cost of servicing that debt. They also discourage new borrowing. Easy money dries up. This speeds up the onset of the next recession and the cycle repeats itself.

To understand this, we can look back at the past three boom-bust cycles.

In October 1987, the stock markets crashed. The following year, inflation rose above 5 percent, prompting then-Fed Chairman Alan Greenspan to raise interest rates to a peak of 9.75 percent in late 1988.* This led to a mild recession in the early 1990s. Greenspan pushed rated down to a low of 3 percent in late August 1992, then began to slowly nudge them upward in 1994. But the Fed never got rates anywhere near the pre-recession level. With the economy plugging along, rates peaked at 6 percent in February 1995. From there, Greenspan held rates in the 5 percent range through 2001.

As the New York Times put it, “Greenspan makes a winning bet in the mid-1990s, resisting pressure to raise interest rates as unemployment declines. He argues that increased productivity, including the fruits of the computer revolution, have increased the pace of sustainable growth. Indeed, the Fed finds itself debating whether there is such a thing as not enough inflation, and a new Fed governor named Janet L. Yellen plays an important role in convincing Mr. Greenspan that a little inflation helped to lubricate economic growth.”

In December 1996, the dot-com boom was in full swing. Greenspan actually warned of “irrational exuberance” in the markets, even as he fed it with artificially low – for the time – interest rates.

Again from the NYT.

“The Fed decides that popping bubbles is not part of its job description, leading critics to charge that Mr. Greenspan’s monetary policies spawned an era of booms and busts, culminating in the 2008 financial crisis.”

And then the dot-com bubble popped in the spring of 2001.

In response, Greenspan slashed rates, eventually dropping them all the way to 1 percent in June 2003. This set the stage for the 2008 financial crisis.

The Fed began nudging rates higher in the summer of 2004. By February 2005, we were already seeing ripples of trouble in the over-inflated housing market, but the Federal Reserve continued nudging rates up. Of course, mortgage rates moved upward along with the federal funds rate. More homeowners began to default. In late 2007, the bottom fell out and in 2008, the entire system imploded, kicking off the Great Recession.

By December 2008, Federal Reserve Chairman Ben Bernanke had dropped rates to .25 percent – effectively zero – and he launched what would become three rounds of quantitative easing. The Fed held rates at that historically low level for seven years.

And now we find ourselves in the midst of a new bubble. The economy is loaded up with government, corporate and consumer debt. The stock markets have been juiced to record levels. We also see other asset bubbles in high-yield bonds, housing (again), and commercial real estate, along with a lot of other assets you don’t hear as much about – such as art and comic books.

Investment strategist and author Peter Schiff says the current bubble economy has grown far bigger than it was in the months leading up to the 2008 crash.

“We have had artificially low interest rates for an unprecedented number of years at an unprecedented low rate. So, the mistakes that have been made during this time period dwarf the mistakes that have ever been made in any bubble in the past because the bubble is so much bigger.”

Janet Yellen nudged rates up for the first time in 2015, followed up with one hike in 2016. It wasn’t until 2017 that the central bank began to normalize in earnest, hiking rates seven times over the next two years. After the last hike in December 2018, the Fed funds rate stood at 2.5 percent. The Federal Reserve also began to unwind quantitative easing in 2018 by shedding assets from its balance sheet.

Last fall, the impact of rate hikes and quantitative tightening began to ripple through the economy. The stock market tanked. It was the first sign that the cycle was about to turn from boom to bust. Current Federal Reserve Chair Jerome Powell rode to the rescue, signaling that interest rate normalization was over and announcing the end of quantitative tightening. This monetary policy 180 has stabilized the markets for the time being. But it is only a matter of time before the bubbles pop and the economy moves into the downward spiral.

Not only is the existence of a central bank-fueled business cycle rooted in sound economic theory, we see the impact of Federal Reserve monetary policy in the ups and downs of the business cycle as it has played out through time.

The bottom line is that we can’t “fix” the economy by electing Republicans or Democrats. We can’t put the country on sound economic footing by tweaking this or that policy in Washington D.C. The only way to put the economy on a sound footing is to deal with the root cause of the problem — the Federal Reserve and its constant meddling. As long as the Fed controls the monetary system, there will never be a “free market” in America. The central bankers always have their fingers on the economic scales.

]]>Republican “Constitutionalists” Ignore the Constitution on Family Leavehttp://tenthamendmentcenter.com/2019/05/21/republican-constitutionalists-ignore-the-constitution-on-family-leave/
Tue, 21 May 2019 20:04:57 +0000http://tenthamendmentcenter.com/?p=28467Republicans in Congress love to invoke the Constitution — until they don’t. On May 2, 2019, United States Senator Mike Lee (R-Utah) posted the following on his Facebook page: “Article I, Section 8 of the Constitution unequivocally states that Congress shall have the power to declare war – Congress, not the President, not the Pentagon, […]]]>

Republicans in Congress love to invoke the Constitution — until they don’t.

On May 2, 2019, United States Senator Mike Lee (R-Utah) posted the following on his Facebook page:

“Article I, Section 8 of the Constitution unequivocally states that Congress shall have the power to declare war – Congress, not the President, not the Pentagon, not someone else within the Executive branch, but Congress.”

Senator Lee is correct in his assertion. But his emphatic application of the Constitution is inconsistent.

Less than two weeks later, Lee expressed his support for the unconstitutional CRADLE Act, a federally-mandated, paid maternity leave program.

According to the Boston Globe “…women of all political stripes view paid maternity leave as an important issue.” Further, the article asserts that the United States is the only industrialized country not providing cash benefits to women during maternity leave and cites data from the (unconstitutional) Bureau of Labor Statistics indicating that only 13 percent of private-industry employees enjoy formal paid family leave. The (also unconstitutional) 1993 Family and Medical Leave Act does guarantee 12 weeks of time off to care for a new child, but that time is unpaid.

While all of the above may be true, the first inquiry, particularly from a United States Senator should be, “Is paid maternity leave a proper issue for Congress to address from a constitutional perspective?” After all, Senator Lee was certainly upset when it appeared the executive branch was encroaching upon a power delegated to Congress. But his concern for the Constitution apparently vanishes when it requires Congress to restrain itself.

A survey by Hearts and Mind on the issue of paid maternity leave revealed respondents were cautious about expanding the scope of government, and that nearly two-thirds felt that any federal leave plan should be fiscally responsible and “not increase the total amount of money the government spends” or increase the taxpayer burden. Jennifer C. Braceras, the author of the article in the Boston Globe, laments that the FAMILY Act, sponsored by Senator Kirsten Gillibrand (D-N.Y.), would not meet these criteria.

By contrast, Ms. Braceras praises a bill sponsored by Senator Marco Rubio (R-Fla.) and another introduced by Senators Joni Ernst (R-Iowa) and Mike Lee. The latter proposals will give paid leave without increasing the taxes on workers or burdening businesses. Funds for time paid during parental leave would be taken from (the also unconstitutional) Social Security benefits at the time of retirement. Everyone knows that Social Security is destined to run out of funds, so in no way can this plan be made in good economic faith.

Journalists and those advocating for policies they prefer, are not encumbered by the restraints of the Constitution, so Ms. Braceras rightly compares and contrasts the fiscal pros and cons of each plan. United States Senators, however, are encumbered by such constraints, or at least they’re supposed to be.

The people, through their state delegates, created a federal and not a national system, as explained by James Madison in Federalist #39. And in Federalist #45, Madison clearly delineated the limits on federal power.

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and prosperities of the people, and the internal order, improvement, and prosperity of the state.”

The Tenth Amendment reaffirms this principle, stating that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

When ratifying the Constitution, the people of the states delegated specific powers to the general government. Congressional powers are enumerated specifically in Article I, section 8 — a section Senator Lee is aware of, yet applies this fundamental constitutional principle only when convenient.

Clearly, there is no Constitutional authority for any type of family leave act. (Before yelling, “general welfare,” you should read this.) One has to wonder why a “conservative” Senator like Mike Lee would be in support of it.

In his book Nullification: Reclaiming Consent of the Governed, historian Clyde Wilson explains that the “Founding Fathers did not anticipate the ravages of the two-party system and its abilities to foist cunning mediocrities on the public.” He further explains that our representatives today, creatures of the political parties, “are more adept at winning offices than at filling them, at conniving and self-promotion than at statesmanship.”

That fact that family leave benefits are provided by every other industrial nation around the world is of no concern to us from a constitutional perspective — absent an amendment pursuant to Article V. Senators in support of the proposed CRADLE Act are guilty of hoisting the constitutional flag when it suits their needs; here, they are playing identity politics, pandering to women voters to benefit their respective parties.

This plan, like minimum wage regulations, is rife with the possibility of unintended consequences. Recall the economist Milton Friedman’s admonition about judging policies and programs by their intentions rather than their results. As for the Democrats’ plan, Benjamin Franklin comes to mind, as he warned us “When the people find that they can vote themselves money that will herald the end of the republic.”

Family Leave is a matter that was never delegated to the general government. States, therefore, have the exclusive authority regulate in this area. Ultimately, the best solution should come from the free markets, but I don’t foresee states or the federal government permitting them to do so.

Ms. Braceras concludes her article by saying, “This spring, let’s make good on our Mother’s Day tributes by giving mothers what they really want: paid time off with a new child.”

As for me, I prefer to leave these new children with a legacy of limited government respective of its proper role and constitutional restraints.

]]>Why the Founders Wanted You to Own Military-Style Weaponshttp://tenthamendmentcenter.com/2019/05/20/why-the-founders-wanted-you-to-own-military-style-weapons/
Mon, 20 May 2019 11:59:46 +0000http://tenthamendmentcenter.com/?p=28454Two hundred and twenty-seven years ago this month, the U.S. Congress passed the Militia Acts of 1792. This pair of bills authorized the president to lead the state militias in war and to conscript all able-bodied free men to fight with self-provided arms and munitions. To a modern American living in the midst of an […]]]>

Two hundred and twenty-seven years ago this month, the U.S. Congress passed the Militia Acts of 1792. This pair of bills authorized the president to lead the state militias in war and to conscript all able-bodied free men to fight with self-provided arms and munitions.

To a modern American living in the midst of an empire with a permanent military presence both here and abroad, there might be little reason to acknowledge this anniversary. However, it offers an example of how the founders believed military defense and war should be handled, and why so many modern arguments against civilian gun ownership don’t match the history.

The first Militia Act was passed on May 2, followed shortly thereafter by the second Act on May 8. The first act gave the president the power to call up the militia “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.” The second Act called on every “free able-bodied white male citizen” between the ages of 18-45 to join a militia.

Why are these laws relevant today?

We live in a time when Americans are told by self-appointed “wise overlords” that the founders never intended for private citizens to have military weapons. Incidentally, they never cite anyplace that the founders made this assertion, nor where they declared their love for intervening in other countries’ domestic affairs, endless unconstitutional wars, and a permanent military with bases in foreign nations for that matter. This argument is used to justify gun control policies that restrict our right to keep and bear arms as described in the Second Amendment.

The reality is that many in the founding generation were terrified of a permanent, standing army that could crush liberties at home. This fear was a major theme during the Virginia Ratifying Convention in 1788. In fact, the convention’s proposed Second Amendment text makes it clear why it was so important that the proposed central government had no say in the possession of firearms by Americans (bold emphasis added):

That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

The convention’s “Second Amendment” draft also provides another glimpse into their worldview. The country’s defense was to come from the people, not an army held to a different legal standard. There was no separation between soldier and civilian. At the convention, George Mason referred to the militia as “the whole of the people.” In every colony besides Pennsylvania, able-bodied men not only had to join a militia and show up to musters, but they had to furnish their own functioning arms.

The Militia Acts show that this tradition carried on through Colonial America into its history as an independent country apart from Great Britain and under the newly-approved U.S. Constitution.

Under the Militia Acts, the militia members had to bring the following:

A good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutered and provided.

The militiamen were to be armed with their own weapons, not ones provided and owned by the federal government.

Now some might argue the U.S. government lacked the financial resources it does today, but that’s why it’s important to look at the broader context of the law. The founders did not want a standing army, and there were no calls for these men to surrender their personal firearms once a military crisis had been addressed.

Ultimately, free men must be the ones responsible for defending their liberties and their country if that freedom is to last. The founders believed that, and it’s why they favored a militia-style military composed self-equipped men, which would reduce the risk of a standing army that would take that responsibility away. If free men are not responsible, then they are not really in charge – and thus they are not truly free.

A constitutionalist or someone sympathetic to anti-federalist concerns might take issue with the law and how it was used to call up the militia during the Whiskey Rebellion. However, the Militia Acts offer reveal the blueprint for how the founders believed wars should be fought, and why they made it clear the central government should have no right to infringe on the people’s right to keep and bear arms.

]]>New Book Smashes “Settled-Science” Mantra on Vaccines, Raises Concerns About Vaccine Mandateshttp://tenthamendmentcenter.com/2019/05/19/new-book-smashes-settled-science-mantra-on-vaccines-raises-concerns-about-vaccine-mandates/
Sun, 19 May 2019 18:51:21 +0000http://tenthamendmentcenter.com/?p=28409We’ve seen a growing movement pushing mandatory vaccinations in the United States driven by the FDA, CDC and pharmaceutical companies. There’s been a recent onslaught of attention focused on vaccines. Recent measles infections are the purported reason for this. Although the CDC has reported that there have been 764 measles cases in the U.S. in […]]]>

We’ve seen a growing movement pushing mandatory vaccinations in the United States driven by the FDA, CDC and pharmaceutical companies. There’s been a recent onslaught of attention focused on vaccines. Recent measles infections are the purported reason for this. Although the CDC has reported that there have been 764 measles cases in the U.S. in 2019 as of May, this figure simply doesn’t explain the heightened attention to vaccines.[1]

Historically, measles outbreaks have been cyclical, Since the U.S. began vaccinating against measles in the 1960s, there have been multiple years in which the number of U.S. measles cases has reached several hundred and even into the thousands. [2] Even in the year the federal government declared measles “eliminated” (2000), there were 86 reported cases of measles in the U.S. [3] Therefore, the current number of measles cases is far from extraordinary. Further, as of this writing, none of the 2019 U.S. measles cases have resulted in death. This is not unusual, as death from measles is exceptionally rare in the U.S. In the last 15 years, only one U.S. death has occurred in a person confirmed to have measles. [4]

In fact, although the media and government have recently stepped up their messaging regarding vaccines, this is part of a much larger story that has been playing itself out for years, and it appears that it may now be coming to a head. The story centers on whether Americans will have the right to informed consent, to decline vaccines, and whether the government will mandate them. An important new book by J.B. Handley, How to End the Autism Epidemic, published in 2018, is a must-read by anyone concerned with how this story ends. [5]

However, before discussing Handley’s book, it is worthwhile to review the current status of U.S. vaccine schedules and mandates.

Expanding U.S. Vaccine Schedules

The FDA has classified vaccines as “biologics” rather than “drugs,” thereby allowing vaccine manufacturers to forego the multi-year, double-blind inert placebo-controlled studies required for drug approval. [6] [7] In addition to not undergoing inert, placebo-controlled studies, vaccines are subject to very short periods of monitoring for adverse reactions, often of 14 days or less. [8] [9] Furthermore, the vaccine industry enjoys legal protections from liability not afforded to other industries.

In 1986, the National Childhood Vaccine Injury Act (NCVIA) effectively removed liability from the manufacturers of most vaccines. The law also created the National Vaccine Injury Compensation Program (NVICP), a special system outside of the normal litigation process for claims of harm caused by vaccines. Any compensation granted by the NVICP is paid by the public, through a surcharge on vaccines, and not by vaccine manufacturers. To date, over $4 billion has been paid under this system to compensate for the harm caused by vaccines. [10] Additionally, although discovery is a right afforded to litigants in most other legal forums, discovery is not permitted in the NVICP process, thereby thwarting claimants’ ability to uncover evidence, such as damaging research, damaging e-mails and other relevant information.

Since the removal of liability from the vaccine industry, the number of vaccines recommended by it and the CDC has grown. The CDC currently recommends 70 doses of 16 vaccines by age 18, many for diseases which are rarely fatal in the U.S., and the U.S. now recommends more childhood vaccines than any other country. [11] This is a significant increase from the 23 doses of seven childhood vaccines recommended by the CDC in 1983. [12]

Since 2002, the CDC has also recommended an adult vaccine schedule and the number of vaccines on that schedule is growing as well. [13] According to the current schedules, a person receiving all of the recommended doses on the childhood schedule, and then all of the recommended doses on the adult schedule would receive a total of approximately 149 vaccine doses. [14] Furthermore, hundreds of new vaccines are in the developmental process and it is expected that many will be added to the CDC’s recommended schedules.

A Battle Taking Place Over Vaccine Mandates

Currently, adult vaccine mandates don’t exist at the state level. However, some states have mandated childhood vaccines based on the CDC’s recommended schedule. There are three types of exemptions from these childhood mandates — religious, personal belief/philosophical and medical. States laws vary as to the number and types of exemptions allowed.

A concerted effort is underway to eliminate the state childhood exemptions and to increase the types and doses of vaccines administered to both children and adults. The pharmaceutical industry is highly involved in this effort and its actions have included, among other things, serving as “information resources” for legislators, lobbying legislators and even drafting the pro-mandate legislation. [15] The pharmaceutical industry has significant resources available to fund lobbying efforts aimed at mandating vaccines and a strong financial incentive to do so. In 2018, the U.S. vaccine market was valued at $36.45 billion and it is expected to reach $50.42 billion by 2023. [16]

The efforts by the pharmaceutical lobby have been fruitful in helping to eliminate vaccine exemptions and to expand mandates. As an example, in 2015, after extensive pharmaceutical industry lobbying, California passed Senate Bill 277, eliminating the personal belief and religious exemptions, leaving only a medical exemption in that state. [17]

In 2015, lobbyists pushing for passage of SB 277 used the fact that a medical exemption would remain intact in California as a talking point. That exemption can still be obtained under existing law by the submission of a statement from a child’s physician stating that immunization is not safe for the child. However, in the incremental, “chipping away” approach being taken by the pharmaceutical lobby, during California’s 2019 legislative session, the lobby is aggressively pushing for passage of SB 276, which would limit California’s sole remaining exemption in two ways:

The exemption would no longer be granted based upon submission of the physician’s statement discussed above and would only be granted based upon a decision made by the California State Department of Public Health (CDPH); and

The criteria for granting a medical exemption would be significantly narrowed to only CDC Contraindications and Precautions specific to the vaccine at issue. [18] This would result in the denial of most medical exemptions. Under current California law, much broader medical criteria is considered in granting medical exemptions, such as a child’s history of reaction to other vaccines, a sibling’s or family history of vaccine reactions, a genetic predisposition toward medical conditions, and many other medical factors.

Whether SB 276 passes into law in 2019 or not, it is expected that bills supported by the pharmaceutical industry designed to chip away at or eliminate any remaining state exemption rights will continue to be introduced throughout the country.

There are many examples in recent years of state bills introduced and/or passed which have had this effect and several are currently pending throughout the country. For those interested in monitoring the status of state exemptions, the website of the National Vaccine Information Center (NVIC) is an excellent resource for doing so. [19]

In addition to state childhood exemptions being scaled back and eliminated, action is occurring at the federal level to increase the number of vaccines administered to the U.S. population as a whole. In 2010, a National Vaccine Plan (NVP) was established by the U.S. Department of Human Services with explicit goals to be achieved by 2020 which include, among others, the development of new vaccines and increasing the vaccinations administered to the U.S. population. [20]

Further, based in part upon recent comments made by former FDA Commissioner Dr. Scott Gottlieb in February of 2019 shortly before his resignation, some believe that federal vaccine mandates may be imminent. According to CNN, Gottlieb stated during its interview of him that, “[I]f states don’t require more schoolchildren to get vaccinated, the federal government might have to step in.” Gottlieb also reportedly said, “You could mandate certain rules about what is and isn’t permissible when it comes to allowing people to have exemptions.” [21]

With federal mandates a very real possibility in the future, Americans opposed to mandatory vaccines may need to rely upon strong state laws to protect their right to choose with respect to vaccines. Federal regulation becomes ineffective when states enact contradictory policies. If multiple states ban mandatory vaccinations or pass laws which conflict with the CDC’s recommended schedules, it will become extremely difficult for the federal government to enforce future federal mandates.

J.B. Handley’s book “How to End the Autism Epidemic” discusses emergent scientific research which demonstrates a link between vaccines and autism.

With the pharmaceutical industry and government both actively seeking to increase vaccinations in the U.S., public opinion about vaccines will play a key role in whether these efforts are successful, and the media is a strong influencer of public opinion.

The mainstream media, which receives a substantial amount of advertising revenue from the pharmaceutical industry, frequently repeats in its reporting the expression that “vaccines are safe and effective.” With a multitude of vaccines licensed in the U.S., each having a unique set of ingredients, a unique dosing schedule, and a unique body of scientific research concerning it, and each vaccine being administered into a unique human being, the “safe and effective” mantra is an attempt to dismiss a highly complex scientific issue with a simplistic slogan.

Further, on the rare occasions that the media does discuss vaccine safety concerns, it tends to focus almost exclusively on the issue of whether vaccines cause autism, ignoring safety concerns raised about vaccines related to many other medical conditions. The media reports have repeatedly reassured us that the science is solidly settled on this issue, having cleared vaccines of any role in causing autism. However, J.B. Handley’s book “How to End the Autism Epidemic,” published in 2018, thoroughly smashes this assertion.

In the first section of the book, Handley takes on popular falsehoods about vaccines and autism. For example, in chapter one, he refutes the claim that there is no current autism epidemic in the U.S. He does so by methodically addressing the three most common arguments made by those he refers to as “autism deniers”: 1.) that diagnosis has improved; 2.) that autism is simply a reclassification of mental retardation; and 3.) that the definition of autism has expanded. [22] He closely examines the facts and evidence surrounding each argument and refutes each.

For example, in addressing the “improved diagnosis” argument, Handley informs the reader that the rate of autism in the U.S. in 2018, at the time of the publishing of his book, was 277 per 10,000 and contrasts this with the rate of autism of 3.3 per 10,000 found in a study conducted in 1987 of the entire childhood population in North Dakota. Handley analyzes the 1987 study from several angles and persuasively argues that it is reliable and didn’t “miss” children with autism. [23]

Additionally, he discusses a study published in 1975 based upon data from 14 U.S. hospitals associated with major universities which found an autism rate of 4.7 children per 10,000. He also provides a detailed discussion of this study and demonstrates the reliable manner in which it was conducted. [24]

In addressing the “reclassification” argument, Handley discusses three studies from well recognized, reputable sources, two in 2003 and one in 2005, that analyzed autism data and found that diagnostic substitution was not responsible for the rise in autism rate. [25]

In addressing the “definition has expanded argument,” he acknowledges that Asperger’s syndrome was added to the definition of autism in 1994, but explains why, at most, this expanded the number of autism cases to just under 10 percent. [26]

His thorough analysis leaves little doubt that autism is, in fact, increasing at an alarming rate in the U.S.

In the third chapter, Handley exhibits his extensive knowledge of the published studies related to the issue of vaccines and autism and provides information that many readers may find shocking: that only one vaccine, the MMR, and one vaccine ingredient, thimerosal, have ever been studied for their relationship to autism. [27] He also discusses at length the flaws in these studies. This chapter, which shows the stark lack of research analyzing the full childhood vaccine schedule for any possible relationship to autism, may alarm parents who have been lulled into a false sense of confidence in vaccines by the “safe and effective” mantra heard in media reports.

In the second part of his book, Handley discusses, in part, emerging science which indicates that vaccines have had a role in inducing autism in children. Handley walks the reader through eleven groundbreaking scientific studies published since 2004 in peer-reviewed journals which support this conclusion. [28] Handley discusses the significant increase in the amount of aluminum being injected into U.S. children which began in the early 1990s as the result of an increase in the vaccinations they receive. He explains that, as a result of the expansion of the childhood vaccine schedule since that time, the amount of aluminum administered to children has nearly quadrupled. [29] He also notes the alarming fact that aluminum was included as an ingredient in childhood vaccines without having been safety tested in children. [30] He further explains that aluminum is used in vaccines in order to intentionally hyper-stimulate the immune system as part of the vaccination process and that research findings show that the aluminum is accumulating in children’s brains and triggering immune activation events which are implicated in autism. [31]

Additionally, although Handley’s book focuses on autism, he also points out research which implicates vaccines in autoimmune disorders such as asthma, diabetes, food allergies and eczema, which are also growing at alarming rates in the U.S. [32]

Throughout “How to End the Autism Epidemic,” Handley’s contentions and statements are meticulously supported by scientific evidence, with twenty pages of endnotes filled with citations to his sources. He appropriately handles the question of whether vaccines cause autism with the complex scientific review and analysis it requires. The book is a must-read for anyone concerned about the safety of vaccines and whether they should be mandated upon the U.S. public.

]]>Once Upon a Time in Americahttp://tenthamendmentcenter.com/2019/05/18/once-upon-a-time-in-america/
Sat, 18 May 2019 12:49:07 +0000http://tenthamendmentcenter.com/?p=28468Since Woodrow Wilson's broad expansive view of presidential power infected the American presidency, the public, the media and Congress often look the other way at presidential constitutional violations.]]>

There was a time in American history — nearly all of it up to the presidency of Woodrow Wilson — when the federal government followed basic constitutional norms. With some unique and discrete exceptions, like the Civil War, Congress wrote the laws, the president enforced them, whether he agreed with them or not, and the judiciary interpreted them and assessed their compatibility to the Constitution. This is the separation of powers.

My late friend Justice Antonin Scalia often argued that the constitutionally mandated separation of powers is the most uniquely American and liberty-insuring aspect of the Constitution. James Madison, who essentially wrote the Constitution, believed that tension and jealousy between the three branches would enhance personal freedom by preventing the accumulation of too much governmental power in the hands of too few. But he publicly worried about that accumulation, and the branch he feared the most was the presidency.

When the federal courts have addressed challenges to the separation of powers — for example, when the president writes a law and then enforces it — they have uniformly upheld the Constitution. The president can’t write a statute; Congress can’t prosecute or acquit people; the courts can’t determine tax rates. The Madisionian reason for all this is to maximize personal liberty by frustrating governmental power.

Madison’s other core value was limited government. The Madisonian view of the federal government is one limited to exercising only those powers delegated to it in the Constitution.

That is, theoretically, how all this worked until a constitutional scholar from Princeton, with his own ideas of government without end, became president.

Wilson turned Madison’s core values on their heads. His view of the federal government — one adopted by all his successors — was that the federal government can do whatever there is a political will for it to do, except that which the Constitution expressly prohibits. Wilson became the incarnation of Madison’s fears when he — not Congress — prohibited folks from reciting the Declaration of Independence aloud outside military recruiting offices. Then he prosecuted them when they did so, arguing that the First Amendment only restrained Congress and not the presidency. Such an argument would flunk a course in constitutional law today.

Today, presidents have basically abandoned the separation of powers Madison so carefully crafted.

Three events took place last week — all at the hands of President Donald Trump — and each warrants examination from the Madisionian perspective as each assaults limited government and rejects the separation of powers. Each, as well, involves the accumulation of unconstitutional power in the branch of government that Madison feared the most.

Trump ordered acting secretary of defense Patrick Shanahan not to purchase a missile defense system that Congress had authorized and directed him to purchase — and to which Trump had agreed — but to divert that missile-budgeted money to build a fence along a 50-mile stretch of the 1,900-mile Texas/Mexico border. The secretary has publicly indicated that he will comply.

This violates the separation of powers because it is an expenditure of money from the Treasury — solely a congressional prerogative — without a congressional appropriation. As well, it directly defies Congress on the construction of this fence. The president asked Congress for the funds to build the fence and Congress said no. He took funds from the Treasury to build it anyway.

In the same breath last week, the president also ordered the acting secretary to deploy troops to assist the Border Patrol to enforce immigration laws at the Texas/Mexico border. This, too, is unlawful because among the laws Trump swore to uphold is a federal statute prohibiting the use of the military for domestic law enforcement.

Also, last week, the president announced the imposition of a 25% tariff on nearly all goods entering the U.S. from China. This, too, he did on his own, even though under the Constitution only Congress can impose taxes. Is the tariff a tax by another name? Trump argues that the Chinese government will be paying billions into the U.S. Treasury and he can then spend that money however he wishes.

Trump is wrong again. First, the tariffs are collected at the border and are initially paid directly by the Chinese seller, not the Chinese government. The seller then passes the tariff cost on to American consumers, who purchase the goods on which the tariffs have been imposed. The tariff is actually a sales tax, which will increase by 25% the cost of any product purchased in America that originated in China.

So, for every dollar that a Chinese seller pays to the U.S. Treasury, an American consumer reimburses the seller one dollar. Multiply that by a few hundred billion dollars, and you can grasp Trump’s destructive ignorance of Economics 101. Perhaps he has forgotten that only Congress can direct the expenditure of funds in the Treasury; though this is a constitutional principle he has already shown that he rejects.

What’s going on here?

Since Woodrow Wilson’s broad expansive view of presidential power infected the American presidency, the public, the media and Congress often look the other way at presidential constitutional violations. When Congress does that, isn’t it giving up its prerogatives by letting the president seize and then exercise what is really congressional power? The Supreme Court has said that the branches of government cannot trade or exchange or cede away constitutional powers, whether by ignorance or weakness or consent, without a constitutional amendment.

Madison’s ideological adversary at the creation of the American Republic was Alexander Hamilton. Hamilton argued that the president should serve for life. Madison countered that life-tenure would make the president a king.

Once upon a time in America, Madison’s fear of a king would have been unthinkable and unrealistic. Today, it is becoming the norm.

]]>Newsflash: Social Security and Medicare Still Going Brokehttp://tenthamendmentcenter.com/2019/05/16/newsflash-social-security-and-medicare-still-going-broke/
Thu, 16 May 2019 10:56:28 +0000http://tenthamendmentcenter.com/?p=28460The simple fact of the matter is that governments can't run things. Perhaps we should stop letting them.]]>

Last year, Social Security and Medicare trustees warned that the programs are going broke. A year later — they’re still going broke.

This shouldn’t come as a shock to anybody. It’s yet another example of the ineptitude of the political class in Washington D.C. And yet people still clamor for these same politicians and bureaucrats to take control over more and more aspects of their lives.

According to the annual Social Security and Medicare trustees report that was released Monday, Social Security will begin dipping into reserves in order to pay out benefits next year and those reserves will run dry in 2035. At that point, the program will no longer be able to pay out full benefits. In other words, Social Security recipients will see their benefits cut.

Analysts project Social Security’s expenses will exceed revenues as early as next year, according to the report. That means the program will have to begin spending money held in its trust fund in order to meet its obligations. While the Social Security administration has dipped into reserves before, analysts project this is now a long-term trend with no sign of reversal.

“Social Security will pay out more than it takes in next year and every year going forward,” Peterson Foundation chief Michael Peterson told reporters. “That’s the definition of unsustainable.”

According to the Social Security Administration, it will only be able to meet about 80 percent of benefits payable once money in the trust fund is spent.

The Social Security program uses payroll taxes paid into the system by current workers and their employers to cover retirees’ benefits. The program generally runs a surplus. The Social Security Administration invests additional revenues into the mythical the trust fund. Interest earned is also reinvested in the fund. Over time, the trust fund has grown to nearly $3 trillion. But once the system starts spending the principle in the trust fund, it will rapidly deplete.

And of course, the money in the trust fund doesn’t actually exist. It is in the form of Treasurys – US government debt. In other words, the federal government owes the trust fund the money that is supposedly in the “lockbox.” This accounts for the federal government’s unfunded liabilities we often hear about. According to the recently released Financial Report of the US Government, the government estimates Social Security’s long-term funding gap to be a mind-blowing $53.8 trillion.

Medicare is in even worse shape. The program’s hospital insurance trust fund is expected to run out of money in just seven years — 2026.

Both Medicare and Social Security suffer from the same fundamental economic problem. The nation’s population is aging, pushing up the costs of both Social Security and Medicare. Meanwhile, a shrinking labor force and lagging economy mean less money flowing into the system.

Of course, this is what eventually happens with every Ponzi scheme. And make no mistake, both of these programs are quintessential Ponzi schemes. They depend on current contributors to pay the obligations to those who got into the scheme earlier. This works fine until the number of new people coming into the scheme starts to taper off.

We are rapidly approaching the pivot point where the entire system steamrolls toward collapse.

At the end of 2018, Social Security about 67 million Americans were receiving Social Security payments. In 2017, there were 2.8 workers for every Social Security recipient. That was down from 3.3 in 2007. If you go back to 1995, there were 4.9 workers for every retiree.

Politicians seem uninterested in addressing the problem. The Social Security and Medicare trustees issues these warnings year after year. Nobody seems to want to grapple with the fact that if Congress doesn’t act, Social Security and Medicare benefits will be cut. And the only way to fix the problem is to cut future benefits, or raise taxes — neither popular options.

Every government program eventually runs into similar problems. Politicians overpromise the benefits and underestimate the costs. Eventually, the programs become unsustainable and people tricked into counting on these government boondoggles end up suffering when services get cut or their costs rise.

Just consider the abysmal failure of Obamacare. Insurance premiums have soared through the roof. Contrary to Obama’s promise, people couldn’t keep their doctor. Heck, the government couldn’t even launch the website without a fiasco. And yet supporters of these programs can never admit that they failed. It’s always somebody else’s false.

The simple fact of the matter is that governments can’t run things. Perhaps we should stop letting them.

]]>Today in History: The Philadelphia Convention Scheduled to Beginhttp://tenthamendmentcenter.com/2019/05/14/today-in-history-the-philadelphia-convention-begins/
Tue, 14 May 2019 15:25:01 +0000http://tenthamendmentcenter.com/?p=28455Today in 1787, delegates from the several states convened in Philadelphia to form a convention with the initial aim of proposing amendments to the Articles of Confederation. A number of delegates were not present on May 14, mostly due to the difficulty of travel in the late 18th century. Meetings were pushed back until May […]]]>

Today in 1787, delegates from the several states convened in Philadelphia to form a convention with the initial aim of proposing amendments to the Articles of Confederation.

A number of delegates were not present on May 14, mostly due to the difficulty of travel in the late 18th century. Meetings were pushed back until May 25, when a sufficient quorum of the participating states — Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina and Georgia — had arrived.

Over the course of the next four months, they formulated a model for a new general government which would require the positive ratification of nine states. According to Article VII, it was a compact between states “so ratifying the Same.”

James Madison and Edmund Randolph went to the Philadelphia Convention advocating for a “National Legislature” with a general legislative authority. Instead, this form of legislature was rejected in favor of a specific list of enumerated powers, reserving the remainder to the states. The two Virginians called for the executive to be elected by a “National Legislature” much like in their own state. Instead, a state-based electoral college was created to elect the executive.

Madison and Randolph supported a bicameral legislature, where both houses would be apportioned by population and the lower house would elect the upper house. Instead, one house of apportioned by population while the other would have equal suffrage. Madison and Randolph drew plans to allow for a powerful federal judiciary, with the power to rule on all cases of perceived importance.

Instead, the Constitution authorized a less powerful judiciary that could only adjudicate original certain types of cases. Madison and Randolph went to the Philadelphia Convention with the hope that the Congress would have veto power over state laws. This proposal was exceedingly unpopular, and Madison complained about it in the months after the convention, eventually describing his disdain toward the omission in an October 1787 letter to Thomas Jefferson.

Alexander Hamilton arrived with a plan that called for the executive to be a monarch, for him to appoint the state senators and governors, and for the states to effectively be dissolved and homogenized into a single body. The convention scorned this model, and he did not get his wish. Hamilton also proposed that the senators should serve for “during good behavior or life.” The obvious product of the Constitution is that they would serve six-year terms.

John Mercer, Luther Martin, and James Wilson went to Philadelphia as friends of paper money, opposing any prohibitions against it. Instead, the Constitution prohibited both the states and the federal government from emitting such currency.

Roger Sherman, James Wilson, and James Madison left Philadelphia contending that a bill of rights was unnecessary and superfluous. During the First Congress, Sherman and Madison withdrew their opposition. The Bill of Rights was written, endorsed by Congress, and ratified by the states. It contained various explicit restrictions against the federal government.

Madison went to the Philadelphia Convention with the hope of defining treason as a crime committed against the general government as a whole. Instead, the Constitution defines the crime as an act perpetrated against individual states. He also went to the Philadelphia Convention promoting a binding power whereupon state governments would share responsibility for enforcing the laws and judicial decisions of other states. Instead, the finalized Constitution imposed no such requirement.

In Philadelphia, Gouverneur Morris envisioned the executive as an unimpeachable, irremovable figure. The result of the Constitution made the president, as well as all civil officers, subject to the impeachment and removal power. He was joined by Robert Morris in attempting to secure a power to institute a national bank with monopoly power over currency emissions. Their proposal was defeated.

Some new powers were delegated through the Constitution, mostly concerning items related to foreign matters and taxation. Still, the federal orientation of the government was maintained, and a general legislative authority was discarded in favor of enumerated powers. Ultimately, the finalized Constitution was much less nationalistic compared to alternatives such as the Virginia Plan and Hamilton’s Plan for government.

Notable Federalists in the states, such as Charles Pinckney, Edmond Randolph, Alexander Hamilton, James Iredell, and Fisher Ames described the Constitution in their respective state ratification conventions as a mechanism which would bring a limited government with specific enumerated powers, whereupon no other authority could be exercised.

The Tenth Amendment, which most states desired in order to make these assurances explicit, was deemed by Thomas Jefferson to be the “foundation” of the federal Constitution.

]]>New evidence on the meaning of the Necessary and Proper Clausehttp://tenthamendmentcenter.com/2019/05/13/new-evidence-on-the-meaning-of-the-necessary-and-proper-clause/
Mon, 13 May 2019 10:09:44 +0000http://tenthamendmentcenter.com/?p=28452The Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18) provides: The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in […]]]>

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

As explained repeatedly by the Constitution’s advocates during the ratification debates, this clause is not actually a grant of power. It is what lawyers call a recital. If the provision were absent, the correct legal interpretation of the Constitution would be the same. The Clause has an explanatory function. It helps to clarify meaning and prevent useless arguments. It clarifies that, unlike the Articles of Confederation (but like most power-granting documents) the Constitution should be read in light of the doctrine of incidental powers.

Here is a simple example of how the doctrine of incidental powers works. The Constitution grants Congress authority “to establish Post Offices and Post Roads.” Does “to establish” a road include the power to build it? One might construe “establish” as narrowly as reasonably possible, and thereby exclude road building. Thomas Jefferson once toyed with this position. But Jefferson was neither a framer nor a ratifier, and the dominant understanding was almost certainly different from his. This is because in the 18th century, the common legal phrases “establish post Roads” and “establish roads” encompassed authority to build them. The Necessary and Proper Clause tells us to adopt the usual interpretation, not the narrowest one.

For many years, constitutional commentators did not understand this. Most thought the Clause granted broad, undefined authority to Congress. This began to change when in 2004 I published an article amassing evidence how 18thcentury lawyers used clauses like this. The article also reproduced many explanations of the Clause issued by the Constitution’s advocates during the ratification debates. In 2010 three other scholars and I co-authored a book producing additional evidence along the same lines.

A newly published volume of the Documentary History provides still more evidence. It reprints an essay promoting the Constitution signed “A Subscriber.” The essay first appeared in the October 19, 1787 Philadelphia Independent Gazetteer. The author was very upset with opponents’ persistent misrepresentations of its terms. Here’s what he had to say about the Necessary and Proper Clause.

In the 8th section, the power of Congress is declared and defined in several particulars, but as it was impossible to make all the laws at one time, which might be necessary to provide for the modes of exercising those powers, there is a general clause introduced which is confined to the powers given expressly by this Constitution to the Congress. It is, “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers, vested by this constitution in the government of the United States, or in any department or office thereof.” This certainly is not so much power as every other legislative body on this continent has, for the powers of this Congress are confined to what is expressly delegated to them; and this clause for enforcing their powers is confined merely to such as are explicitly mentioned. Yet have the words been stretched and distorted by some writers so as to give a power of making laws in all cases whatever. Nothing betrays the base designs of a writer more than his perversion of a plain meaning, which he often does by laying hold of some words and dropping others so as to make the fairest conduct appear in a shape that itself abhors.

32 DH 422 (Italics in original.)

Postscript: The Latin in the cartoon above, Incipient magni procedere menses is from the 4th Eclogue (moderately short poem) of the Roman poet Virgil. The founding generation was deeply steeped in the Greek and Roman classics, and this is but one example. The poem is about the beginning of a new age, and this phrase is translated literally as “The great months will start to proceed” and loosely as “A new age will begin.” The cartoonist expects a new age to begin once the states (pillars) have ratified the Constitution.

The two Latin inscriptions on the Great Seal reproduced on the dollar bill—Novus ordo seclorum and Annuit coeptis also are adaptations of phrases from Virgil’s works. The former is also from the 4th Eclogue, while the latter derives from a similar phrase in the Aenead, Virgil’s lengthy epic poem–in my opinion the most powerful work in all Latin literature. For more information, see articles here and here.

Incidentally, the phrase “necessary and proper” is itself a translation from a Latin phrase once common in English documents: necessaria et opportuna.

]]>Fix Education by Radical Decentralizationhttp://tenthamendmentcenter.com/2019/05/11/fix-education-by-radical-decentralization/
Sat, 11 May 2019 13:24:43 +0000http://tenthamendmentcenter.com/?p=28433Almost everybody admits that the American school system underperforms. “Reform” is almost universally prescribed as the solution. But in other walks of life, bad ideas are not reformed—they are eliminated and replaced with better ideas. Our school system is rarely identified as the bad idea. The system is reflexively left undisturbed while the methods — […]]]>

Almost everybody admits that the American school system underperforms. “Reform” is almost universally prescribed as the solution. But in other walks of life, bad ideas are not reformed—they are eliminated and replaced with better ideas.

Our school system is rarely identified as the bad idea. The system is reflexively left undisturbed while the methods — the bad ideas — get cycled in and out: open concept schools, multiple intelligences, project-based learning, universal design for learning, merit-based pay, vouchers, charters, and most recently, educational neuroscience. Every decade or so, the pedagogic experts tell us they have found the solution.

The trouble is that they’re looking right past the problem.

The root of the problem is that the concept of “schooling” has gained a monopoly over “education.”

There is an important distinction between those two terms.

According to the National Center for Education Statistics, approximately 97 percent of kids go through traditional schooling (as opposed to homeschooling or unschooling), and just over 90 percent of those attend government schools. That is to say, there is basically one accepted way to educate kids today: school them.

Instead, the government makes it mandatory and forces taxpayers to subsidize it. Public education proponents call this an “investment.”

OK, let’s look at the return on that investment.

Divestment Not Investment

Contrary to what proponents of public education tell you, the U.S. education isn’t broke. In fact, the system is flush with cash. And yet it generates very few positive results.

Take New York City for example. The state was front and center in the reform battle during President Obama’s Race to the Top (RTT) initiative. Leading up to the controversial dash for cash, the city had been experiencing an education system overhaul, including battles over charter schools. It was a knock-down fight featuring New York City Mayor Michael Bloomberg, his Board of Education chief, Joel Klein and the powerful unions. The state was seeing an infusion of Wall Street cash backing charters, which were being throttled by state Democrats and union bosses. In addition to the almost $700 million in RTT funds and the $61.4 million spent at the state level, the city of New York saw millions of dollars invested from groups like Democrats for Education Reform (DFER).

So, what was the result of these “investments?”

According to Cornell University’s NYC Education Data program, less than half of all eighth graders in the state are proficient in English language arts and math.

We see similar results across the country. A 2015 Organization for Economic Cooperation Development report reveals just how far behind American students are falling. The average score for 15-year-olds in math, language and science on the Program for International Student Assessment (PISA) test for the US was 470. Only students in Mexico (402), Chile (423) and Turkey (420) had lower scores. Thirty-one other nations scored higher than the U.S., with Japan leading the way at 532. This is just a snapshot of the poor performance in our modern schools.

The American “schooling” system yields educational results that are clearly a failure. So, what should our education model look like?

The Subsidiarity Model

Almost all directives, curriculum and resources in education come from the federal level and filter down through the states. Common Core is just one example.

Common Core was intended to create nationwide education standards. While touted as a state initiative through the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO), the U.S. Department of Education was heavily involved behind the scenes. Initially, the DoE tied the grant of waivers from the No Child Left Behind Act to the adoption of Common Core, using the standards as powerful strings to influence state education policy. The Every Student Succeeds Act passed by Congress in 2015 prohibited the DoE from attempting to “influence, incentivize, or coerce State adoption of the Common Core State Standards … or any other academic standards common to a significant number of States.” ESSA gives more latitude to states and local school districts in determining standards, but the feds still maintain significant control over state education systems. States are required to submit their goals and standards, along with a detailed plan outlining how they plan to achieve them to the DoE for feedback and then approval.

Without federal approval, states risk losing significant amounts of federal funding. This carrot keeps states in line and enables the feds to maintain significant control over state and local school systems.

This top-down approach has led us to the fiasco that we experience today. So how do we take back our schools?

The answer is simple; we don’t!

The current system is broken. Finding new people to run it won’t change that. The “one size fits all” approach leaves everyone involved frustrated and worse off. Instead, self-directed options are optimal, such as the Sudbury model or unschooling. To truly reform education, we suggest implementing the subsidiarity model in educating our children.

The subsidiarity principle is simple; nothing that can be done at a lower political level should be done at a higher political level. Obviously, this is the complete opposite of how we address education today. Critics will claim that there must be a central authority to direct people on what to do and how to act, but that is precisely the problem.

Subsidiarity absolutely could and should be applied to educating our children. We learn at the most basic level; the family unit. We learn some of life’s most important skills, like speaking, walking, socializing, etc., all without state-directed standards. In fact, we learn them from interacting with others in our family and local environments. It is feasible to continue that educative process on to learning how to add, subtract, write a sentence or solve a world problem.

What if there is an issue that cannot be solved at the family unit? What if mom and dad do not know how to analyze the works of Shakespeare or teach you how to solve inequalities? Under the subsidiarity model we would look to the next smallest unit. In this case, that might be your local neighborhood, township or county. This idea has already been implemented in homeschooling communities through co-ops; groups of families from a local area coming together to help educate children in a diverse manner. Only in very rare exceptions would we need to go to the state level for guidance and even rarer, if ever, to the federal government.

Final Impact

Governments cannot mandate education; it can only mandate that you go to school. This is why so many people remain essentially uneducated after 12 years of schooling. Schools are great for government and it’s not surprising politicians support them. But if one were to list each of the most effective functions of a school, education would not even make the top 10. The current system breeds failure.

There is no perfect formula or scenario in educating a human being, but perfection is not our aim. We believe radical decentralization will serve as a better, if not the best, option for educating our youth. It would require an engaged citizenry and would force people to take on more responsibility. People couldn’t just turn the keys over to the government and say, “Here, educate my child.”

If we are to return power to the people of this country and take it out of the hands of Washington D.C., this would take a great first step.

Justin Spears co-wrote this article with Mike Margeson. Mike is a high school social studies teacher in Indiana; he has 15 years experience in the classroom. He holds a Bachelors in Political Science from UC Irvine and a Masters from Butler University in Educational Administration. He is currently working to co-author a book with Justin; “Failure: The History and Results of a Broken School System.”

]]>Trump Is No Enemy of the Fedhttp://tenthamendmentcenter.com/2019/05/09/trump-is-no-enemy-of-the-fed/
Thu, 09 May 2019 12:43:08 +0000http://tenthamendmentcenter.com/?p=28436A lot of people labor under a misconception that President Donald Trump opposes the Federal Reserve. While the president has leveled a great deal of criticism at the central bank in recent months, he has never opposed the Fed in principle. He’s merely expressed frustration that the central bankers won’t implement the monetary policy he […]]]>

A lot of people labor under a misconception that President Donald Trump opposes the Federal Reserve.

While the president has leveled a great deal of criticism at the central bank in recent months, he has never opposed the Fed in principle. He’s merely expressed frustration that the central bankers won’t implement the monetary policy he prefers at this time.

In fact, Trump wants the Fed to lower interest rates and, in effect, print money, just like it did when Barack Obama was in the White House.

Just before the most recent Federal Open Market Committee meeting, Trump took to Twitter to push the Fed to cut interest rates.

China is adding great stimulus to its economy while at the same time keeping interest rates low. Our Federal Reserve has incessantly lifted interest rates, even though inflation is very low, and instituted a very big dose of quantitative tightening. We have the potential to go…

….up like a rocket if we did some lowering of rates, like one point, and some quantitative easing. Yes, we are doing very well at 3.2% GDP, but with our wonderfully low inflation, we could be setting major records &, at the same time, make our National Debt start to look small!

This wasn’t the first time Trump urged the Fed to push interest rates down. A month earlier, Trump directed pretty much the same message at Federal Reserve Chair Jerome Powell. During an interview, Trump complained about the Fed’s 2018 interest rate increases, saying “they really slowed us down.” Trump emphasized that he wants stimulus and called on the Fed to resume Obama era quantitative easing (QE).

Well, I personally think the Fed should drop rates. I think they really slowed us down. There’s no inflation. I would say in terms of quantitative tightening, it should actually now be quantitative easing. Very little if any inflation. And I think they should drop rates, and they should get rid of quantitative tightening. You would see a rocket ship. Despite that, we’re doing very well.”

Trump also took aim at Powell and the central bank, last fall as the stock market went into free-fall. He said, “The problem I have is with the Fed. The Fed is going wild. They’re raising interest rates and it’s ridiculous.” He also said the Fed is “going loco.” The next day, the president doubled down, saying “I’m paying interest at a high rate because of our Fed. And I’d like our Fed not to be so aggressive because I think they’re making a big mistake.”

These aren’t the comments of a man who opposes central bank manipulations of the economy. These are the comments of a man who wants the central bank to manipulate the economy in a way that benefits him politically.

Ironically, the president’s call on the Federal Reserve to cut rates and resume quantitative easing (in effect, print money) sends extremely mixed messages. On the one hand, the president says the United States has the best economy in the history of forever. But if that’s the case, why would the Fed need to cut rates?

Conventional wisdom dictates that central banks should normalize rates in a strong economy. They cut rates during a recession – as the Fed did in the years after the 2008 financial crisis – to “stimulate” the economy. Once the economy recovers, the central bank gradually brings rates back to “normal,” as mainstream monetary policy prescribes.

Unless Trump wants to argue that a 2.5 percent interest rate is normal – which of course is absurd – his call for rate cuts in a “booming” economy doesn’t make sense. He can’t have it both ways. Either the economy is awesome-blossom or else it needs the Fed to intervene.

The Fed’s Monetary Heroin

In the wake of the Great Recession, the Federal Reserve effectively lowered interest rates to zero in 2008 and kept them there for seven years. In 2015, the central bank boosted rates for the first time and followed up with one hike in 2016. It wasn’t until 2017 that the central bank began to normalize in earnest, hiking rates seven times over the next two years. The Fed initiated its last rate increase in December of last year. The Federal Reserve also began to unwind quantitative easing in 2018 by shedding assets from its balance sheet. (For more on quantitative easing and tightening, click HERE.)

But last fall, the impact of rate hikes and quantitative tightening began to ripple through the economy. The stock market tanked.

In effect, the Federal Reserve spent nearly a decade manufacturing an economic recovery out of piles of debt and by pumping up asset bubbles like the stock market. It accomplished this by creating trillions of dollars in new money out of thin air and pumping it into the economy.

Rising interest rates don’t bode well during a central bank-manufactured boom built on debt. The Fed’s pivot toward tighter monetary policy pricked the bubble. Thus, the chaos in the markets during the fourth quarter of 2018.

When the stock market started going down last fall, the Fed did a monetary policy 180. It announced a pause in rate hikes and an end to balance sheet reduction. That stabilized the markets – at least for the time being.

Here’s an analogy that illustrates exactly what the Fed did.

Think of artificially low-interest rates and money-printing like heroin. The Fed injects the drug into the economy and makes it high. The partiers have a blast for a while. The economy booms. Asset prices climb. But eventually, everybody realizes the heroin will cause an overdose. At that point, the Fed starts to take the drug away. We all know what happens when you take a drug away from an addict. He goes into withdrawal. The economy crashes. The bubbles burst. The boom turns into a bust. When things get really bad, the Fed rushes in with more heroin and the cycle repeats.

We saw this with the dot-com boom-bust in the late ’90s and early 2000s, and the real estate boom-bust that followed. Now the economy is in the midst of boom-bust 3.0.

Trump Wants More of the Drug

Trump seemed to understand this when he was on the campaign trail. He accurately called the stock market a “big, fat, ugly bubble.” He questioned the legitimacy of the recovery. But now the president owns the bubble. He branded the “booming” economy with a big Trump “T.” And that means Trump has a problem. If the next crash happens before the 2020 election, it will likely doom his reelection hopes.

This explains Trump’s criticism of the Fed. He wants the kind of monetary stimulus Obama got during the Great Recession in order to keep the bubble inflated until after the election. He needs the central bank to pump more heroin into the addict to keep him going — just a little while longer.

This isn’t about Trump opposing the Fed. This is about Trump using the central bank for political purposes – pretty much like every other politician.

And make no mistake – the longer the economy stays high, the harder it will crash.

]]>War on Venezuela: An Unconstitutional Disaster in the Makinghttp://tenthamendmentcenter.com/2019/05/07/war-on-venezuela-an-unconstitutional-disaster-in-the-making/
Tue, 07 May 2019 10:12:24 +0000http://tenthamendmentcenter.com/?p=28427Ron Paul: "Without Congressional authority, US military action of any kind against Venezuela would be an illegal and likely an impeachable offense."]]>

Is President Trump about to invade Venezuela? His advisors keep telling us in ever-stronger terms that “all options are on the table” and that US military intervention to restore Venezuela’s constitution “may be necessary.” Secretary of State Mike Pompeo was on the Sunday news programs to claim that President Trump could launch a military attack against Venezuela without Congress’s approval.

Pompeo said that, “[t]he president has his full range of Article II authorities and I’m very confident that any action we took in Venezuela would be lawful.” The man who bragged recently about his lying, cheating, and stealing, is giving plenty of evidence to back his claim.

The president has no Constitutional authority to start a war with Venezuela or any other country that has not attacked or credibly threatened the United States without Congressional approval. It is that simple.

How ironic that Pompeo and the rest of the neocons in the Trump Administration are ready to attack Venezuela to “restore their constitution” but they could not care less about our own Constitution!

While Washington has been paralyzed for two years over disproven claims that the Russians meddled in our elections to elect Trump, how hypocritical that Washington does not even hesitate to endorse the actual overturning of elections overseas!

Without Congressional authority, US military action of any kind against Venezuela would be an illegal and likely an impeachable offense. Of course those Democrats who talk endlessly of impeaching Trump would never dream of impeaching of him over starting an illegal war. Democrats and Republicans both love illegal US wars.

Unfortunately, Washington is so addicted to war that President Trump would likely have little difficulty getting authority from Congress to invade Venezuela if he bothered to ask. Just as with the disastrous US invasion of Iraq in 2003, the mainstream media is nothing but non-stop war propaganda. Even so-called progressives like Rachel Maddow are attacking the Trump Administration not for its reckless saber-rattling toward Venezuela but for not being aggressive enough!

The real lesson is that even a “Constitutional” war against Venezuela would not be a just war. It would be a war of aggression for which Americans should be angry and ashamed. But the mainstream media is pumping out the same old pro-war lies, while the independent media is under attack from social media companies that have partnered with US government entities to decide what is “fake news.”

The latest outrage in the mainstream media is over the most sensible thing President Trump has done in some time: last week he spent an hour on the telephone with Russian President Vladimir Putin to discuss, among other things, the dangerous situation in Venezuela.

While President Trump’s neocon advisors are purposely trying to position him so that war is the only option, we can only hope that President Putin was able to explain that the Venezuela problem must be solved by the Venezuelans themselves. Certainly the US, perhaps together with the Russians, could help facilitate discussions between the government and the opposition, but the neocon road to war will surely end up like all the other neocon wars: total disaster.

The media is furious that Trump dared to speak to Putin as the two countries increasingly face-off over Venezuela. The Democrats and neocons are pushing for a direct confrontation that may even involve Russia. Republicans agree. Do they really prefer thermonuclear war? Over Venezuela?

]]>Federal Reserve Appears Poised to Resume Monetizing U.S. Government Debthttp://tenthamendmentcenter.com/2019/05/05/federal-reserve-appears-poised-to-resume-monetizing-u-s-government-debt/
Sun, 05 May 2019 12:44:41 +0000http://tenthamendmentcenter.com/?p=28424It looks like the Federal Reserve is about to get back into the bond business and help the US government deal with its massive debt. The Treasury Department announced last month that it will not have to borrow as much money in the third quarter of fiscal 2019 as originally anticipated. But this is not […]]]>

It looks like the Federal Reserve is about to get back into the bond business and help the US government deal with its massive debt.

The Treasury Department announced last month that it will not have to borrow as much money in the third quarter of fiscal 2019 as originally anticipated. But this is not because of a slowdown in government spending. According to a Treasury official cited by Reuters, the reason for the lower borrowing estimate is due to an anticipated increase in Fed Treasury holdings as the central bank ends its balance sheet reduction program.

In a statement, the Treasury Department said it will borrow a mere $30 billion during the April-June period. It was originally planning on selling an estimated $83 billion in bonds. According to the statement, the lower estimate was due to changes in “fiscal activity.”

So, what exactly does “fiscal activity” mean?

According to the unnamed Treasury official interviewed by Reuters, “The fiscal change related to the Fed’s plans to stabilize its massive portfolio of bonds relative to the size of the US economy.”

This is all related to the end of the Fed’s short-lived quantitative tightening program.

The Fed began the QT balance sheet roll-off in October 2017. At that point, it had grown to $4.5 trillion after three rounds of quantitative easing in response to the Great Recession. You’ll recall that as late as September 2018, tightening was on “autopilot.”

Within a month of announcing the end of quantitative tightening, the Fed started talking about increasing its balance sheet again. According to a paper released by the Kansas City Fed, the central bank may need to hold a higher level of bank reserves “to properly implement monetary policy.”

Bank Reserves make up a big chunk of the Fed’s balance sheet and they have been shrinking rapidly with quantitative tightening. Over the last 12 months, the Fed has shed about $250 billion in US Treasurys from its balance sheet. That has increased the number of bonds the Treasury has had to sell on the open market. It borrowed about $374 billion through credit markets in the January-March quarter, according to Reuters.

In a nutshell, here’s how the balance sheet reduction worked.

When the Fed began its tightening program, it let some of its maturing bonds fall off the books instead of rolling them over. This required the Treasury Department to give cash to the central bank in order to pay off the bonds and to find new buyers for Treasurys on the open market. The US government doesn’t have money to pay off its debt, so it has to borrow more whenever current debt matures. With the Fed’s balance sheet reduction coming to an end, the Treasury will be able to significantly decrease the amount of money it will need to borrow on the open market because the central bank will once again begin rolling over the bonds it holds. In other words, it will allow the Treasury to pay off maturing bonds with new debt. As Reuters put it:

In March, the Fed said it would soon begin ending a program to trim its holdings of U.S. securities. That effectively will make the US central bank a bigger buyer of US Treasury securities relative to recent months.”

When Bernanke launched QE, he insisted the Fed was not monetizing debt. He said the difference between debt monetization and the Fed’s policy was that the central bank was not providing a permanent source of financing. He said the Treasurys would only remain on the Fed’s balance sheet temporarily. He assured Congress that once the crisis was over, the Federal Reserve would sell the bonds it bought during the emergency. And yet, once QT ends, almost all of the mortgages and Treasurys that the Fed purchased at part of its three rounds of quantitative easing during the Great Recession will remain on its balance sheet.

]]>Overthrowing the Empire of the Mindhttp://tenthamendmentcenter.com/2019/05/03/overthrowing-the-empire-of-the-mind/
Fri, 03 May 2019 12:05:02 +0000http://tenthamendmentcenter.com/?p=28411Empires are, first and foremost, constructs of the mind, and it is there that they must first be overthrown.]]>

“The empires of the future are empires of the mind.”
– Winston Churchill

While I’m gratified that so many Americans are at last waking up to the sorry state of our Republic, I have to take issue with the oft-stated notion that America is becoming an empire. On the contrary: America has been an empire for some time now. What is happening to us in terms of our loss of liberties and our government’s increasing aggression, both at home and abroad is not the onset of some new thing. It is, rather, the final stage of an illness that has proven fatal to every people who have ever contracted it—a disease of the mind. For before an empire can be birthed on the world stage it must first be conceived in the minds of men, and the imperial mindset was present in our United States of America from the very beginning.

But how could this be? After all, imperial notions seem far removed—if not entirely antithetical—to American idealism as expressed in the Declaration of Independence. America was conceived in the idea that governments exist in order to protect the rights of individuals, and thus cannot justly exercise power over and above the consent of the governed. Empires, on the other hand, are inherently creatures of force and collectivism; they subvert the rights of individuals in favor of furthering the power of the state. Indeed, the very mention of the word empire conjures up images that are anathema to the classical American mindset: tyrants seated on elaborate thrones, immense standing armies, masses of the common people in servitude (or at least behaving themselves discreetly under the state’s watchful eye), torture chambers, ideological oppression, and rampant decadence.

If we look back on our history with a critical eye, however, I think we’ll notice that imperial ambitions, while not consistent with our core doctrines, are, nonetheless, not as far divorced from our thinking as we would prefer to believe.

The Imperial March

After fighting a revolution to throw off the yoke of an empire, the United States of America began acting, in many ways, as an imperial power itself. President James Monroe effectively made this a matter of policy in 1823 when he articulated his famous “Monroe Doctrine.” The Monroe Doctrine gave the US an actionable interest in the affairs of the entire western hemisphere, and was based on the justification that European maneuverings in the Americas were inherently “dangerous to our peace and safety.” The European nation-states were based on different political systems than our own, Monroe argued; therefore, any expansion on their part in our backyard was a natural threat to us.

Given the relative weakness of the US military at that time in history, the Monroe Doctrine was quite a bold stance. It was indicative of two ideas that would, together, form the cornerstone of American nationalism and, later, militarism: 1) an understanding of the fact that America’s experiment in self-government was fragile, and 2) the fact that Americans were quickly coming to view themselves as the providentially appointed guardians of political righteousness. Journalist John O’Sullivan expressed both ideas in 1845 when he declared that it was America’s “Manifest Destiny”—our clear, divinely appointed mission—to “overspread and to possess the whole of the continent which Providence has given us for the development of the great experiment of liberty and federated self-government entrusted to us.”

In 1853, the US government decided that the Pacific trade had also been entrusted to us, and insisted upon using Japan as a refueling stop on the way to China. This in spite of the fact that Japan was a notoriously isolationist nation at that time in its history and wanted nothing to do with us. Secretary of State Daniel Webster had laid out the justification for this it in 1851, when he asserted that the coal in the Japanese islands had been placed there “by the Creator of all things…for the benefit of the human family.” Commodore Matthew Perry was dispatched to explain this to the Japanese, who, upon seeing the guns of Perry’s ships, agreed that perhaps they were being unfair to us after all. They agreed to grant us re-coaling rights with the Convention of Kanagawa in 1854. Then, a few years later in 1858, Perry convinced the Japanese Shogun to sign a “Treaty of Amity and Commerce,” establishing formal diplomatic relations between Japan and the United States. Once again, Perry’s mission of amity was greatly assisted by the warships he brought with him.

The Nationalist Mindset

There is no doubt in my mind but that Commodore Perry and his superiors believed that they were furthering a noble cause, and this in spite of the fact that they were acting coercively against a people who had done them no harm. Yes, I’m perfectly aware that they were also motivated by the potential for enhancing America’s wealth and prestige in Pacific ventures (in other words, pride and greed), but what must be understood here is that Washington’s brand of nationalism sees no difference between the expansion of American power and the success of American ideals.

Nationalism is, by definition, collectivism; and history demonstrates for us that two things always happen in a collective system: the will of the majority eclipses the rights of individuals, and the majority (or rather, its voice) always assumes the identity of the nation. This makes nationalism fundamentally incompatible with O’Sullivan’s “liberty and federated self-government” in the long term because governments are jealous gods; they will allow no others before them. Where national and regional or local interests collide, as they ultimately must, the former will insist that the latter yield in the name of “the greater good.” Regional and local interests will be dubbed “selfish,” “short-sighted,” and “obstructionist.” Whatever ideals are considered precious will be assumed by the nationalist element, which will tout its own success as equivalent to the success of those ideals, even if, in actuality, its agenda runs contrary to them (the terms “workers’ party” and “revolution of the proletariat” come to mind right away here). Again, the majority, or the voice that claims to represent it, becomes the nation.

This is precisely what happened in our history. An authoritarian, nationalist element eventually gained control of the central government, made its agenda equivalent to the preservation and advancement of “the great experiment of liberty and self-government,” and thereby assumed the moral authority to combat all contrary influences, ostensibly before those influences could destroy the nation itself.

I’m referring, of course, to Abraham Lincoln and his indispensable “war for the Union.”

The True Virginians

According to Lincoln, the Southern states that seceded from the Union weren’t simply trying to go their own way; they were actually trying to destroy America itself. Never mind the fact that secession was not unconstitutional, that it was fully consistent with the principles of self-determination that had led to the creation of the United States of America in the first place, and that the departure of the Southern states would have left the Union fully intact between the remaining states and the government at Washington fully functional. “You have no oath registered in heaven to destroy the Government,” Lincoln informed the Confederacy in his first inaugural address, “while I shall have the most solemn one to ‘preserve, protect, and defend it’.” The war he inaugurated was, in his terms, “essentially a people’s contest,” a “war for a great national idea, the Union,” a test to see whether “any nation so conceived and so dedicated, can long endure,” a struggle to ensure that “government of the people, by the people, for the people, shall not perish from the earth.”

Note that, in spite of the fact that it was Lincoln who was trying to overthrow the expressed will of the Southern people, he nonetheless argued that it was he and his friends in Union blue who were fighting for “government of the people.” The Unionists were the real Americans, the true defenders of liberty and the Constitution. In one amazing instance, Lincoln went so far as to argue that those Virginians who supported secession weren’t even Virginians anymore. In an address to Congress on July 4, 1861, Lincoln remarked:

The people of Virginia have thus allowed this giant insurrection to make its nest within her borders; and this Government has no choice left but to deal with it where it finds it. And it has less regret, as the loyal citizens have in due form claimed its protection. Those loyal citizens this Government is bound to recognize and protect as being Virginia.

Suffice it to say that the histories of wars are written by the victors. Lincoln and his fellow nationalists won, overthrowing the “confederated republic” of the Founders and the Constitution with its doctrines of delegated, separated, and reserved powers, in favor of “one nation, indivisible.” This new version of America became the ‘fulfillment’ of the Declaration of Independence (that old joint resolution of secession), a “new birth of freedom”: the realization of what the Founders had really wanted to achieve but were prevented from doing because of selfish, sectional feeling—or so we’re told.

Even commentators who criticize Lincoln for the cruelty of Northern war measures—especially in the last two years of the war—generally agree that things worked out for the best because of him. In his book Lincoln’s Little War, Webb Garrison demonstrates how Lincoln manipulated the events that led to the Confederate bombardment of Fort Sumter; however, he concludes that the United States could never have become a superpower “if fifty strong and separate states made all the significant decisions,” and that America “became one nation in the real sense of the term” as a result of the war. Writing in the Boston Herald on April 19, 1999, columnist Don Feder compared Yugoslav President Slobodan Milosevic’s tactics to those of Abraham Lincoln, but then brushed Lincoln’s atrocities aside with a statement that it all turned out for the best in the end. “Lincoln did what was necessary to preserve the Union,” Feder commented. “America, the greatest force for good in this century, would have been reduced to a basket case if the rebellion had succeeded.”

So forget the fact that Lincoln overthrew the country’s founding principles and waged a brutal war against innocent people; his victory made it possible for us to overthrow regimes that brutalize innocent people in other countries today, and that’s what counts. Such is the majority consensus, based largely in naiveté, I’m afraid. In opposing Southern secession, Lincoln “saved America,” and many would have us believe that America was saved so that it could, in turn, save the world. Thus the success of America’s ideals became inextricably tied to the power and prestige of the United States of America itself, which became, as Don Feder would say, a “force for good.” And who can argue with a force for good?

Indeed, many Americans came to view the country, not merely as a force for “good,” but as the very instrument of God on earth. Americans, in general, had always believed that they were blessed of God, both in their political system and the richness of their land, but Lincoln twisted the idea of God’s involvement with America to suit his own purposes.

The most enduring example of this comes to us in the form of comments he made during his second inaugural address, which was far more religious in tone than his first. In the address, Lincoln suggested that God had brought the war about in order to punish America for slavery, and that it would continue for as long as God saw fit, even though Lincoln himself had brought it about through his scheming and had the power to end it at any time simply by withdrawing his armies from Southern soil. “The Almighty has His own purposes,” Lincoln informed Americans. “As was said three thousand years ago, so still it must be said ‘the judgments of the Lord are true and righteous altogether’.”

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

Unfortunately, Lincoln’s hypocrisy stuck in the American mindset. The war ceased to be a political power struggle, or a matter of national pride, and instead became a crusade between good and evil, brought about by the providence of God Himself. And once that idea was accepted, it wasn’t much of a leap to assume that, because God had started the whole thing, it had all worked out just as He had planned. Lincoln and the North became God’s instrument of justice; thus their victory, and the nationalist ideals that drove it, had the divine seal of approval. Glory, glory, hallelujah.

And of course, it didn’t help anything that Lincoln died as an apparent martyr to his cause, which had the effect of virtually deifying him, and earned him the right to sit in that Temple of Zeus the taxpayers gratefully erected for him in Washington D.C. Even as a child, when I was caught up in the Lincoln mythos, the Lincoln Memorial struck me as somehow wrong. If you have never been there, you cannot entirely appreciate the scale of it. Lincoln sits—literally larger than life—on a great white throne in the midst of an enormous building that resembles a Greek or Roman temple. It’s a strange marriage of biblical and pagan imagery; a kingly, semi-divine construct that would have given George Washington, James Madison, and Thomas Jefferson heartburn.

Following Lincoln’s (excuse me, God’s) war, American nationalism became a strange mixture of jingoism, ideological protectionism, and an old-fashioned desire for “more,” all combined with a messiah complex. It seems that we threw off the yoke of an empire, not in order to repudiate imperialism, but simply to establish one that was more to our liking. We took over the continent in order to provide room for the “great experiment of liberty and federated self-government,” subduing both treasonous secessionists and red-skinned savages in the process (for the collective good, naturally), policed the neighborhood so that no undesirable elements could move in, and in the process completely altered our mindset and became something those who fought in our revolution would not have recognized.

I take that back; they would indeed have recognized it—they had fought against it, after all.

The War for the American Mind

The empire we see today is a natural extension of Manifest Destiny, carried out on a global stage, driven by a sense of what the ancients referred to as noblesse oblige, a “noble obligation” to civilize the world—or so Washington tells us. Interestingly, our leaders seem to feel that our noble obligation lies along lines defined by natural resource wealth, particularly oil, and may be advanced by less than noble means, as anyone on the other side of the bombs, depleted uranium ammunition, drone strikes, assassinations, and torture can testify. But is this really so surprising? After all, we idolize men who brutalized segments of our own population into submission and then covered it all with the flag and pronounced it good. If we venerate men who did this to our own people, do foreigners really stand any chance of being treated better?

And, of course, we cannot tolerate dissent at home because this “weakens our resolve.” This mentality is summed up nicely in the words of former Attorney General John Ashcroft:

To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.

Remember: nationalists assume the identity of the entire nation and all of the ideals that it supposedly holds dear, even when their agenda and methods obviously conflict with those ideals. In their minds, America is what they say it is, and they are the true Americans, just as Lincoln once proclaimed that those Virginians who supported the Union were the only true Virginians. Our “national unity” is unity on their terms. “Our resolve” is their resolve. If you are not for them, you are against them. Opposing them is “giving ammunition” to America’s enemies; and if you are arming America’s enemies, then, naturally, you yourself are an enemy.

In light of this, it is useless to talk of rolling back Washington’s empire without confronting the mindset that drives it. Empires are, first and foremost, constructs of the mind, and it is there that they must first be overthrown.

]]>Federal Judge Cites “National Security” as Reason to Throw out Lawsuit over NSA Spyinghttp://tenthamendmentcenter.com/2019/05/01/federal-judge-cites-national-security-as-reason-to-throw-out-lawsuit-over-nsa-spying/
Wed, 01 May 2019 22:56:04 +0000http://tenthamendmentcenter.com/?p=28408the federal government gave the court evidence and then argued that the court couldn't use that evidence to determine whether the NSA's spy-program was legal because it would "jeopardize national security."]]>

People often say we shouldn’t worry about federal surveillance because the federal courts will protect our rights and ensure agencies like the NSA and FBI operate within the confines of the Fourth Amendment. A recent opinion handed down by a federal judge reveals why this is a foolish strategy.

The case dates all the way back to 2008 and has been kicked back and forth between federal courts for more than a decade.

In a decision handed down on April 25, U.S. District Judge Jeffery White declared that the feds can use its “state secret” privilege to block litigation relating to mass surveillance. As reported by Courthouse News, the Justice Department argued that “revealing whether classified evidence it gave the court proves that the government collected five named plaintiffs’ internet and phone data would in and of itself threaten national security.”

Therefore the case cannot proceed.

In other words, the federal government gave the court evidence and then argued that the court couldn’t use that evidence to determine whether the NSA’s spy-program was legal because it would “jeopardize national security.”

And the government judge affirmed this argument.

The Electronic Frontier Foundation represents the plaintiffs and called the case a “Catch-22.”

“No one can sue unless the court first determines that they were certainly touched by the vast surveillance mechanisms of the NSA. But, the government argued successfully, the court cannot decide whether any particular person’s email, web searches, social media or phone calls were touched by the surveillance unless the government admits it. Which, of course, it will not do.”

The EFF vowed to appeal the decision.

“The American people deserve to know whether mass surveillance is legal and constitutional,” EFF Executive Director Cindy Cohen said in a statement. “Instead of proceeding to the legal merits of the government’s programs, the court deferred to the government’s state secrecy arguments. We look forward to seeking review in the Ninth Circuit.”

In determining that the suit could not continue, the judge also rejected public evidence submitted by the plaintiffs to show the feds illegally spied on the defendants. This included a 2003 document from a former AT&T technician detailing how the company routed internet traffic through a secret room controlled by the NSA. The judge said the employee could only “speculate” about what went on in that room.

“The underlying premise that AT&T worked in the capacity of an agent for defendants is without factual or substantive evidentiary support,” White wrote

White also refused to consider a letter the government disclosed by mistake that revealed several big telecom companies including AT&T, Verizon and Sprint gave the NSA access to phone records. The judge held that since the government accidentally disclosed the document and disputes its authenticity, it did not meet evidentiary standards.

And according to Courthouse News:

“White also declined to rely on a 2009 NSA inspector general’s draft report describing another mass-surveillance program. Although former NSA contractor and fugitive Edward Snowden vouched for its legitimacy in a sworn declaration, White refused to consider it because the government would not authenticate it.”

In summation, the federal government investigated the federal government and determined there was no way for the federal government to determine if the federal government did anything wrong without jeopardizing the federal government’s federally protected secrets.

This may not be the best way to fight unconstitutional, warrantless, dragnet surveillance.

But we can limit the federal surveillance state through state action. If states refuse to participate in or support federal spying, it will become much more difficult for the NSA and other federal agencies to continue. You can read more about that strategy HERE.

]]>The founder who told Americans we have a right to military weaponshttp://tenthamendmentcenter.com/2019/04/30/the-founder-who-told-americans-we-have-a-right-to-military-weapons/
Tue, 30 Apr 2019 11:29:22 +0000http://tenthamendmentcenter.com/?p=28389Does the Constitution’s right to keep and bear arms apply to everyone? Or only to law enforcement and the National Guard? Does the right include so-called “assault weapons?” A newly published document from America’s founding offers a clue. When interpreting the Constitution, judges and scholars consider what people said about the document around the time […]]]>

Does the Constitution’s right to keep and bear arms apply to everyone? Or only to law enforcement and the National Guard? Does the right include so-called “assault weapons?”

A newly published document from America’s founding offers a clue.

When interpreting the Constitution, judges and scholars consider what people said about the document around the time it was adopted. Writings by the Constitution’s advocates explaining its meaning to the general public are particularly helpful, because Americans relied on those explanations in deciding to ratify the document.

The most famous writings of this kind were penned by Alexander Hamilton, James Madison, and John Jay and collected as “The Federalist.” But there were many others. Among the most important were newspaper op-eds produced by Tench Coxe.

Few people know of Coxe today, but during the founding era he was famous. He served in the Confederation Congress. After the Constitution was ratified he became our first assistant secretary of the treasury, working directly under Alexander Hamilton.

Public release of the proposed Constitution on Sept. 17, 1787 ignited a massive public debate. Opponents argued that if the instrument were ratified it would create an all-powerful central government. Coxe supported the Constitution — and like Hamilton, Madison, and Jay, he was frustrated by opponents’ misrepresentations.

Coxe wrote a series of op-eds to accurately explain the Constitution’s legal effect. His informal style was much easier to understand than the scholarly tone of The Federalist, and his articles became extremely popular.

In a Pennsylvania Gazette article published February 20, 1788, Coxe addressed the right to keep and bear arms: “The power of the sword, [opponents] say … is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY … Who are the militia? are they not ourselves[?].”

Coxe added, “The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people.”

In other words, all able-bodied adult men have the right to keep and bear arms — not just law enforcement and the military. (Since ratification of the 14th Amendment, women also possess the right.)

Coxe also addressed the kinds of arms included: “Their swords, and every other terrible implement of the soldier, are the birth-right of an American.” In other words, the right to keep and bear includes military arms, not just hunting pieces. Rifles such as the AR-15 (misleadingly branded “assault weapons”) are protected — not despite the fact that they are military weapons, but precisely because they are military weapons!

Coxe’s view is hardly surprising to those of us who study the founders: The Revolutionary War had ended only five years before. If American citizens had not possessed military-style weapons, we would have lost.

Coxe wrote further, “Congress have no power to disarm the militia. What clause in the state or federal constitution hath given away that important right[?]”

This passage was composed well before the Second Amendment was proposed. Even then, Congress had no power to disarm the people. This was part of Coxe’s wider argument that federal powers were strictly limited. In other op-eds, Coxe listed many other matters outside the federal sphere and reserved exclusively to the states: education, social services, agriculture, most business regulation, and others.

Despite the fact that Americans relied on such representations when ratifying the Constitution, the federal government now asserts almost unlimited authority. Since politicians always seek to expand their power, that is understandable. Unfortunately, writers on the Constitution often pervert history and constitutional meaning to provide “cover” to the politicians. An example is the ludicrous claim — promoted by some leading law professors — that the Constitution’s Commerce Clause granted Congress vast power over our national life.

Tench Coxe’s writings provide a useful corrective. They are valuable reading for anyone who wants to understand what the Constitution actually says.

]]>Government Spending is Thefthttp://tenthamendmentcenter.com/2019/04/28/government-spending-is-theft/
Sun, 28 Apr 2019 11:49:31 +0000http://tenthamendmentcenter.com/?p=28407by Ron Paul Imagine being robbed every time you receive a paycheck, but once a year getting some of the stolen money back because the thieves took more than they intended. Would you be happy about it? If you are like most Americans the answer is yes, since most people are grateful when they get […]]]>

Imagine being robbed every time you receive a paycheck, but once a year getting some of the stolen money back because the thieves took more than they intended.

Would you be happy about it? If you are like most Americans the answer is yes, since most people are grateful when they get a partial “refund” of the taxes the government withheld from their paychecks. A tax refund means more taxes were taken out of your paycheck than you legally owed — in other words, thanks to withholding you gave the government a no-interest loan.

Withholding, which was supposed to be a “temporary measure” to help finance World War II, is an insidious way of minimizing the pain of, and thus opposition to, taxes. Because people never actually get possession of the money the government withholds, they don’t miss it. Imagine how great public demand for an end to the income tax would be if every month we had to write a check to the IRS.

This year, most Americans are owing less in taxes because of last year’s tax reform. Unfortunately, the benefits of the tax cut are going to be temporary because Congress and the President refuse to cut spending. In the two years that Republicans controlled both houses of Congress and the White House, federal spending increased by approximately 7.5 percent, or around $300 billion. Thanks to the GOP’s spending spree the federal deficit will reach $1 trillion this year, while the federal debt is now over $22 trillion dollars. This does not count the almost $100 trillion in unfunded liabilities which includes over $70 trillion in future Social Security and Medicare benefits.

Spending is going to increase for the foreseeable future. House Democrats have proposed increasing welfare spending by 5.7 percent to $630 billion and warfare spending by 2.1 percent to $664 billion. Many Republicans are complaining that the budget underfunds the military, while progressives say it underfunds domestic programs. Few in DC are willing to cut either welfare or warfare.

Government spending diverts resources from the private sector, thus damaging the economy and lowering our living standards. This is true whether the spending is financed by direct taxes or debt. Deficit spending, and the resulting pressure on the Federal Reserve to monetize the debt, increases the hidden and regressive inflation tax.

Government statistics are manipulated to understate the inflation rate. The Republican tax plan helps government hide the true inflation level by authorizing the use of the chained Consumer Price Index (CPI). Chained CPI makes it easier for the government to understate the effects of inflation by pretending that you are not negatively affected by price increase if, for example, you can still by hamburger instead of steak—even though the only reason you are buying hamburger is because Federal Reserve-caused inflation has made steak unaffordable.

Bill Rice, Jr., writing in The American Conservative, blames CPI manipulation for what he calls “shrinkflation.” Shrinkflation is when producers reduce product size to avoid, or minimize, price increases, so consumers pay more for less.

Tax cuts that are not paired with spending cuts are deferred tax increases. Unless the people and the politicians kick the welfare-warfare habit they will soon face increases in inflation and other taxes. The key to avoiding this is to restore a proper understanding of sound economics and the philosophy of liberty among the people. Politicians will only cut spending when the people stop demanding security and start demanding liberty.

]]>Absolute Federal Supremacy: The Myth That Just Won’t Go Awayhttp://tenthamendmentcenter.com/2019/04/25/absolute-federal-supremacy-the-myth-that-just-wont-go-away/
Thu, 25 Apr 2019 10:15:27 +0000http://tenthamendmentcenter.com/?p=28401It never goes away – the myth of absolute federal supremacy. I got an email from a Tenth Amendment Center volunteer in Illinois last week. He has been working to get the Fourth Amendment Protection Act introduced there. Passage of the bill would end state cooperation with unconstitutional federal warrantless surveillance. But he’s run into […]]]>

It never goes away – the myth of absolute federal supremacy.

I got an email from a Tenth Amendment Center volunteer in Illinois last week. He has been working to get the Fourth Amendment Protection Act introduced there. Passage of the bill would end state cooperation with unconstitutional federal warrantless surveillance. But he’s run into a bit of a snag. The senior attorney for the Senate Democrats told him that “all federal laws supersede state laws.”

Now, of course, the federal government is supreme. The Supremacy Clause in the Constitution makes this clear. But this notion that supremacy means the federal government can do anything it wants any time it wants is simply absurd.

Fact: The federal government is only supreme within its sphere.

Think about a referee in a football game. He is the supreme authority on the football field. But that supremacy doesn’t mean he can go to a baseball game and start calling balls and strikes. The baseball game lies outside of his sphere. He has no authority there.

The Supremacy Clause declares that the Constitution and all laws … “in pursuance thereof” are the supreme law of the land. Any actions that are not “in pursuance thereof” lie outside of the sphere of the federal government. They are not supreme. In fact, Alexander Hamilton called such laws “void.”

Hamilton laid out the scope of the federal government’s supremacy in Federalist #33.

“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed….But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.”

The Constitution limits federal supremacy to those objects falling within the general government’s delegated powers and not one iota beyond them.

St. George Tucker wrote the first extended, systematic commentary of on the Constitution shortly after ratification. For nearly half a century, it was one of the primary sources for law students, lawyers, judges and statesmen. His commentary echos Hamilton’s explanation in the Federalist.

It may seem extraordinary, that a people jealous of their liberty, and not insensible of the allurement of power, should have entrusted the federal government with such extensive authority as this article conveys: controlling not only the acts of their ordinary legislatures, but their very constitutions, also.

The most satisfactory answer seems to be, that the powers entrusted to the federal government being all positive, enumerated, defined, and limited to particular objects; and those objects such as relate more immediately to the intercourse with foreign nations, or the relation in respect to war or peace, in which we may stand with them; there can, in these respects, be little room for collision, or interference between ‘the states, whose jurisdiction may be regarded as confided to their own domestic concerns, and the United States, who have no right to interfere, or exercise a power in any case not delegated to them, or absolutely necessary to the execution of some delegated power.’

That, as this control cannot possibly extend beyond those objects to which the federal government is competent, under the constitution, and under the declaration contained in the twelfth article (Tenth Amendment), so neither ought the laws, or even the constitution of any state to impede the operation of the federal government in any case within the limits of its constitutional powers. That a law limited to such objects as may be authorized by the constitution, would, under the true construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void. [Emphasis added]

In a nutshell, the federal government does exercise supremacy, but only within its limited sphere. It is not an anything and everything proposition.

The Constitution empowers Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Article I, §8, cl. 3. During the New Deal of the 1930s, liberal constitutional writers began to argue that “Commerce” as the Constitution uses the term includes all gainful economic activities. Their purpose was to build a case for unfettered federal supervision of the national economy.

More recently, liberal writers have seized upon the fact that the founding generation occasionally used the word more widely, and have argued that the Constitution grants Congress authority to regulate nearly all social interaction. Their purpose is to build a case for unfettered federal supervision of almost everything (except, perhaps, abortion).

Two research projects (here and here) by Georgetown University’s Professor Randy Barnett found, however, that in everyday 18th century discourse the word “commerce” approximated mercantile exchange. His conclusions were based on literally thousands of usages in contemporaneous writings. In a study of how the terms “commerce” and “regulate commerce” were used in Anglo-American law, I concluded that they included trade and specific (not all) closely-related activities, such as navigation, commercial paper, and marine insurance. My study was based on over 400 reported American and British court cases, as well as statutes, legal treatises and other sources.

I concluded that “commerce” was a legal category separate from other legal categories, including most—such as bankruptcy and manufacturing—considered interdependent with commerce.

In several other articles, I’ve collected specific representations by the Constitution’s advocates that activities such as agriculture, manufactures, criminal law, and domestic relations would remain outside the federal purview—further demonstrating that the constitutional phrase “Commerce” simply could not be as broad as some claim it is.

Nevertheless, legal writers continue to promote the commerce-is-almost-everything view, generally without any serious effort to engage either Professor Barnett’s evidence or mine.

The three recently-issued Pennsylvania volumes of the Documentary History offer virtually no support for the commerce-is-everything hypothesis. On the contrary, in the documents reproduced, “commerce” is a concept separate from other economic and non-economic activities. The context shows that the word was allied to “trade” and distinct from manufactures, agriculture, and other social activities—even when those activities are deeply affected by commerce. In the minds of these writers, “commerce” was essentially the economic exchange of goods previously produced.

Following are sample quotations with citations to volume and page of the Documentary History in this form: [volume] DH [page]

* “although the crops of late have been generally good, never was the farmer better paid for the part he spared for commerce.” 32 DH 7.

* Instead of a free commerce with all the world, our trade is every where fettered with restraints and impositions, dictated by foreign interest.” 32 DH 15.

* A regular commerce has nearly the same effect as agriculture or the mechanic arts; for the principles are generally fixed and understood.” 32 DH 32

* “it cannot be denied, that in a certain degree, commerce, manufactures, and colonization are necessary in countries full of people, and loaded with an enormous expense for the support of a splendid government fleets and armies.” 32 DH 148.

* “. . .‘commerce has been stated as the great object, and I fear it is yet believed to be the most important interest in New-England. But from the best calculations I have been able to make, I cannot raise the proportion of property, or the number of men employed in manufactures, fisheries, navigation, and trade, to one-eighth of the property and people occupied by agriculture, even in that commercial quarter.’ This author very judiciously ranks agriculture, manufactures, internal trade, and foreign commerce in the first, second, &c. [etc.] places, respectively. 32 DH 159.

]]>The Neutrality Proclamation in a Nutshellhttp://tenthamendmentcenter.com/2019/04/22/the-neutrality-proclamation-in-a-nutshell/
Mon, 22 Apr 2019 09:46:05 +0000http://tenthamendmentcenter.com/?p=28398Today in history, on April 22, 1793, President George Washington issued a statement that the United States would remain neutral in the ongoing conflict between France and Britain. Given that his decision kept the United States out of a war, why was it so controversial? In 1778, the fledgling United States and France agreed to […]]]>

Today in history, on April 22, 1793, President George Washington issued a statement that the United States would remain neutral in the ongoing conflict between France and Britain. Given that his decision kept the United States out of a war, why was it so controversial?

In 1778, the fledgling United States and France agreed to two treaties, one of which committed both countries to mutual military assistance. As France became consumed by its Revolutionary Wars, the country called upon the support of its North American ally.

Congress and Washington’s cabinet were completely split on the issue. Hamilton and the Federalists thought it a wise move to keep the young country out of European conflicts, but the Jeffersonian Republicans thought doing so would be a violation of their treaty with France.

As he did on many occasions, Washington sided with Hamilton, releasing a proclamation holding that the United States would “carefully avoid all acts and proceedings whatsoever” that may involve the U.S. in a European war.

Washington asked French diplomat Edmond-Charles Genet to be recalled. However, given Genet’s inability to secure American aid to France, he feared for his life at the height of France’s Reign of Terror and was thus granted asylum in the United States for the rest of his life.

After the Neutrality Proclamation, as it was called, was issued, both Hamiltonian Federalists and Jeffersonians dug in their heels, embroiled in an argument over the constitutionality the gesture.

As the debate – later dubbed the Pacificus-Helvisius Debates – raged, Alexander Hamilton composed a series of essays, under the name “Pacificus,” that backed the administration’s policy. His position hung upon three main arguments.

First – that the treaty with France was a defensive treaty that compelled no support for offensive wars, and that it was secured with France’s previous government under the Bourbon monarch Louis XVI – who had been since put the guillotine.

Second – that peace and neutrality was the default condition before war had been declared, and thus Washington was simply reiterating the status quo rather than usurping Congressional authority.

And third – that the president possesses the authority to preserve peace, and that Washington’s proclamation was part of his executive prerogative to determine the course of foreign affairs.

As part of Washington’s cabinet, Jefferson pleaded with James Madison to write and publish a series of essays that articulated an oppositional perspective against the Neutrality Proclamation. Though he was hesitant, Madison eventually agreed, and released a series of essays under the name “Helvidius.”

Madison’s case against the Neutrality Proclamation boiled down to several counterpoints.

First – that all executive powers other than treaties require the existence of laws to be executed.

Second – that the Neutrality Proclamation was an infringement upon the legislative power since only Congress could determine whether or not to declare war. Additionally, allowing the executive a monopoly on the interpretation of treaties endangered Congress’ power to exercise its constitutional authority.

Third – that France’s financial and military support for the War against Britain was secured through the aid of the French people, who paid into its treasury, rather than through its kingly head. Widely understood legal mantra under the law of nations, Madison wrote, held that treaties do not expire upon the political transformation of a country.

And fourth – that the power to declare neutrality would rupture the constitutional bounds of the presidential office, setting a dangerous and kingly precedent.

Whatever one thinks about the constitutional permissibility of Washington’s proclamation, it was an event that widened the gulf between the Federalists and Republicans. Indeed, Jefferson was so incensed over the Neutrality Proclamation that the event contributed to his resignation from Washington’s cabinet as secretary of state. From that point forward, Jefferson would attempt to undermine the Federalists in a more direct way.

The Neutrality Proclamation also contributed to the outbreak of the Quasi-War with France a few years later, where the young United States were pitted against their former ally.

]]>This is a Debt Spiralhttp://tenthamendmentcenter.com/2019/04/20/this-is-a-debt-spiral/
Sat, 20 Apr 2019 11:43:07 +0000http://tenthamendmentcenter.com/?p=28393The U.S. federal government has spun into a death-spiral. Or perhaps we should call it a debt-spiral. According to the Committee for a Responsible Federal Budget president Maya MacGuineas, the average taxpayer forked over more than $2,000 this year just to cover their share of the interest on the national debt. In other words, we’re […]]]>

The U.S. federal government has spun into a death-spiral. Or perhaps we should call it a debt-spiral.

According to the Committee for a Responsible Federal Budget president Maya MacGuineas, the average taxpayer forked over more than $2,000 this year just to cover their share of the interest on the national debt.

In other words, we’re not paying for stuff today. We’re paying for the spending of the past.

In an op-ed published by The Hill, MacGuineas and former Pensylvania Gov. Ed Rendell said interest payments on the debt rank as the fastest growing part of the federal budget. It will be bigger than Medicaid next year and larger than the military budget by 2025.

Even so, borrowing and spending show no signs of slowing. The federal government set an all-time record monthly deficit of $234 billion in February. The net interest payment that month alone was $25 billion. The annual interest expense for the federal government is approaching $500 billion. And it will continue to accelerate as each month’s deficit adds to a national debt already topping $22 trillion.

Despite the ever upward spiraling debt, there seems to be no urgency to address this issue in Washington D.C. The Hill article lists a litany of excuses used to sweep the problem under the rug.

Tax cuts pay for themselves (they don’t)

“My priority” is too important to worry about paying for it.

Don’t worry we can just print more money

The debt isn’t really important and we can deal with it down the road.

Wrap your head around this. At the current rate, within 50 years, the national debt will be twice as large as the entire US economy. This is using conservative numbers and assumes Congress doesn’t do anything to make the situation worse – probably not a safe assumption.

These spiraling interest payments are one of the reasons the Federal Reserve can’t let interest rates rise. Every uptick in the interest rate increases the government’s interest payment. At the current trajectory, the cost of paying the annual interest on the US debt will equal the annual cost of Social Security within 30 years.

Now, imagine where we’d be if we were actually in a “normal” interest rate environment. If the interest rate on Treasury debt stood at 6.2 percent – as it did in 2000 – the annual interest payment on the current debt would nearly triple to $1.3 trillion.

The decline in interest expense between 2007 and 2014 – while we were running trillion-dollar deficits – was due to the Fed lowering interest rates to levels not seen since the Great Depression. This seemingly free lunch led many in the political/Keynesian class to conclude that they’d discovered a perpetual motion machine: simply cut interest rates every year and borrowing is essentially free … The recent 25 percent spike in interest expense in just three years exceeds the percentage increase in government debt because interest rates rose concurrently. So the US is now being hit with a double-whammy of debt that’s both rising and becoming more costly. Now the real trouble begins. As the government’s short-term debt is refinanced at ever-higher interest rates, interest expense will rise even more steeply. Within three years at the current rate of borrowing, U.S. federal debt will be $25 trillion. An average interest rate of 4 percent – below the historical norm and easily within reach if current trends continue – will produce an annual interest expense of $1 trillion. Interest will be the government’s largest single budget item, raising the deficit and adding to future debt increases. The perpetual motion machine will have shifted into reverse.”

When you get into a debt-spiral, rising interest expense begets higher deficits begets rising interest expense. As Rubino points out, once you’re in the spiral, there really isn’t a way out – only a choice of crises. Push rates down and risk a currency collapse or allow rates to continue rising and burst the bubble economy.

“Every time they make the problems bigger by kicking the can down the road, there’s more political motivation to kick it again.”

The Trump administration has been touting its economic successes, but Schiff said he doesn’t think the president believes his own rhetoric.

“How can Donald Trump be saying on the one hand that we have the greatest economy in the history of the world, on the other hand, we need the same emergency monetary policy we needed in the depths of the Great Recession? That doesn’t make sense. We have the greatest economy, but we need emergency quantitative easing. Well, the reason it makes sense is because Trump knows we don’t have a great economy; he knows we have a great bubble. He knew we had a bubble as a candidate. He criticized the Fed for doing quantitative easing — for inflating the bubble. But now that he owns the bubble, he needs the Fed to do more QE to keep it from popping before the next election.”

The problem with kicking the can down the road is that eventually, you run out of road.

]]>Julian Assange: Political Prisonerhttp://tenthamendmentcenter.com/2019/04/18/julian-assange-political-prisoner/
Thu, 18 Apr 2019 12:08:07 +0000http://tenthamendmentcenter.com/?p=28386 When the government has the power to tell us what we we allowed to see, hear, and know, we no longer live in a free society.]]>

Last week’s arrest of Wikileaks publisher Julian Assange by the British government on a US extradition order is an attack on all of us. It is an attack on the US Constitution. It is an attack on the free press. It is an attack on free speech. It is an attack on our right to know what our government is doing with our money in our name. Julian Assange is every bit as much a political prisoner as was Cardinal Mindszenty in Hungary or Nelson Mandela in South Africa.

They, and so many more, were imprisoned because they told the truth about their governments.

Repressive governments do not want their citizens to know that they are up to so they insist on controlling the media. We are taught, at the same time, that we have a free press whose job it is to uncover the corruption in our system so that we can demand our political leaders make some changes or face unemployment. That, we are told, is what makes us different from the totalitarian.

The arrest of Assange is a canary in a coal mine to warn us that something is very wrong with our system.

What’s wrong? The US mainstream media always seems to do the bidding of the US government. That is why they rushed to confirm Washington’s claim that the Assange indictment was not in any way about journalism. It was only about hacking government computers!

As the New York Times said in an editorial, sounding like a mouthpiece of the US government, Julian Assange committed “an indisputable crime.” But was it? As actual journalist Glenn Greenwald wrote last week, what Julian Assange did in 2010, for which he is facing extradition to the US, is no different from what New York Times and other journalists do every day! He attempted to help Chelsea Manning shield his identity as he blew the whistle on US government crimes to a publisher. The information in question included a video showing US military personnel participating in and cheering the murder of Iraqi civilians. Why is it criminal for us to know this?

The difference is that what Assange and Manning did embarrassed the US government, which was lying to us that it was “liberating” Iraq and Afghanistan when it was actually doing the opposite. Mainstream journalists publish “leaks” that help bolster the neocon or other vested narratives of the different factions of the US government. That’s why the US media wants to see Assange in prison, or worse: he upset their apple cart.

The lesson is clear: when you bolster the government’s narrative you are a “brave journalist.” When you expose corruption in government you are a criminal. Do we really want to live in a country where it is illegal to learn that our government is engaged in criminal acts? I thought we had an obligation as an engaged citizenry to hold our government accountable!

As long as Julian Assange is in prison, we are all in prison. When the government has the power to tell us what we we allowed to see, hear, and know, we no longer live in a free society. Julian Assange will be extradited to the US and he will have dozens of charges piled on. They want him to disappear so that the next Assange will think twice before informing us of our government’s crimes. Are we going to let them steal our freedom?

]]>Weaponizing People for Political Gain is Nothing Newhttp://tenthamendmentcenter.com/2019/04/16/weaponizing-people-for-political-gain-is-nothing-new/
Tue, 16 Apr 2019 15:17:25 +0000http://tenthamendmentcenter.com/?p=28381Fear not, both sides of the issue can look to history as a precedent for this behavior.]]>

On April 12, 2019, the Los Angeles Times published an article headlined “Trump Threatens to Dump Immigrants into California’s ‘Sanctuary Cities.” The article explains that the plan involves busing migrants held in detention centers near the border and releasing them into districts of Democratic lawmakers who oppose the president’s immigration policies.

Trump told reporters, “California certainly is always saying, ‘Oh, we want more people…and they want more people in their sanctuary cities. Well, we’ll give them more people. We can give them a lot. We can give them an unlimited supply. Let’s see if they’re so happy.”

There is nothing in these statements to leave anyone with the impression that Trump is concerned about the consequences or legality of this proposal.

According to the Times, “It’s not clear what legal authority, if any, the government would have to transport detainees a long distance before releasing them.”

As I explained in a previous article, the federal government has no constitutional authority to declare whether immigrants are here legally or not, much less to bus people to other cities. Article I section 8, clause 4 of the United States Constitution empowers Congress to “establish an uniform Rule of Naturalization.” Naturalization is the process by which an individual becomes a United States citizen. It has nothing to do with immigration – controlling who may or may not cross the country’s borders.

In Federalist #39, James Madison explained that establishing the Constitution would not be a national, but a federal act. What does this mean in terms of immigration? It means that the authority to control immigration rests with the states. The states should also be fiscally responsible for the consequences of their policies in this area.

People are confused because they mistakenly consider immigration and naturalization synonymous. Another source of confusion is an erroneous interpretation of the Supremacy Clause, found in Article VI of the Constitution, which states, in relevant part, that the Constitution, and the laws of the United States made in pursuance thereof are the supreme law of the land.

The Tenth Amendment says that “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Accordingly, the power to determine immigration statuses and policy rests with the states. This administration has no authority to detain immigrants or bus detainees anywhere, let alone to the districts of political opponents.

Former President Obama was accused of abusing the system in the same manner, by using his refugee policy to plant Muslims in areas politically opposed to his administration. One of the consequences was the election of Democrat Congresswoman Ilhan Omar of Minnesota, a Somali who married her brother so she could stay in the United States.

Critics of the previous administration’s abuses are now applauding the abuses of the current administration, for purposes of payback and political one-upmanship. They find the president’s statements to be humorous, and at best, we are told not to take him too seriously.

Fear not, both sides of the issue can look to history as a precedent for this behavior.

On January 1, 1863, President Lincoln issued the Emancipation Proclamation, which “freed” slaves. Thanks to this act, he is falsely hailed by the indoctrinated as “The Great Emancipator,” yet what has been taught as a humanitarian act was nothing more than a military tactic. First, Lincoln wanted to keep England out of the war, and from acknowledging the CSA as a belligerent nation. The second was the logical and likely intended outcome – slaves would revolt against their masters, meaning woman and children left home while the men fought. Slaves in States remaining in the Union were not affected, nor were slaves in the South in areas of federal control; any State rejoining the Union within 100 days would be allowed to keep their slaves.

United States immigration policies, particularly since 1965, have been aimed at shifting political dynamics. Federal policies have, however, benefited one entity, and that is Big Government. The importation of people from third world countries has fundamentally changed the political climate, to the benefit of top-down central government the founders and ratifiers rejected.

Rather than seeing the current debacle as amusing a form of payback, no one seems to realize that actual human beings are affected. We have dehumanized real, living, breathing people for political theater. Obama brought migrants IN to benefit his policy objectives; Trump is advocating keeping them OUT to keep his campaign promises. Trump cannot, in good faith, argue that these immigrants are a danger to society, and subsequently threaten to relocate them as punishment into communities not supportive of his political policy objectives.

Ignored completely is the system put into place when the Constitution was ratified; a system to intended avoid this very crisis, yet we have sunk to new lows. Those who care not for the rule of law claim they are right and demand open borders; those citing the Constitution claim they are right, and demand the nation’s borders be shut down and illegals be removed. What both sides are guilty of is failing to understand the original intentions of the Constitution which was put in place to ensure that the states would be the ones to determine who would remain within their sovereign borders.

From Lincoln to present-day administrations, we are witness to the weaponization of marginalized classes of people for political gain. Those cheering this behavior on should take a hard look at the real issue and ask whether those who fought and died for our independence would wish they had simply stayed home.

]]>Prior to 1913 No One Paid Income Tax. Why Now?http://tenthamendmentcenter.com/2019/04/14/prior-to-1913-no-one-paid-income-tax-why-now/
Sun, 14 Apr 2019 11:45:01 +0000http://tenthamendmentcenter.com/?p=28378As a nation under the U.S. Constitution we are 230 years old. It may surprise readers to learn that for the first 124 of these years we had no federal income tax and handled our expenses quite well. Today the 55% who pay federal income taxes (77.5 million do not) pay nearly a fifth of […]]]>

As a nation under the U.S. Constitution we are 230 years old. It may surprise readers to learn that for the first 124 of these years we had no federal income tax and handled our expenses quite well. Today the 55% who pay federal income taxes (77.5 million do not) pay nearly a fifth of their income to the federal government. Prior to 1913 one kept what is now taken from them.

How would you spend it if not taken? You would spend the extra fifth of your salary on thousands of items that are made by others as well as services you might like. This not only would enrich your life but it would provide jobs for others making those items or providing those services. Many middle class folks could purchase a new car every other year with what they are forced to give to the federal government.

Would you spend it more wisely than the federal government? Certainly! Most of the money taken from you by the federal government is spent on perpetual war, foreign aid, grants to privileged portions of our society, and endless unconstitutional subsidized programs; the last two categories of which basically take the money of those who produce and redistribute it to those who do not. Even some non-tax payers get income tax refunds—so corrupt is the system.

Of course, those receiving and benefiting from these programs will defend them. But the fact remains that tax monies provide largely government jobs, which are almost entirely consumption jobs (jobs that consume the production of society but produce little consumable). Such jobs cannot produce for public consumption a potato, a carton of milk, or even a can of hair spray. They bring another person to the table to eat, but not another to produce something to eat.

What largely brought about the give-away programs of the Twentieth Century was the now 106-year-old 16th Amendment—the federal income tax. All three 1912 presidential candidates Teddy Roosevelt, William Howard Taft and Woodrow Wilson, and their respective parties, wanted this financial water faucet that they could turn on at will. With it they could purchase anything—even people.

Prior to 1913 the federal government remained mostly faithful to her grants of power in Article I, Section 8 of the U.S. Constitution, which left them with only four powers: to tax, pay the debts, provide for the general welfare, and provide for the common defense. Because the federal government has the inclination to maximize their authority the last two power grants, general welfare and common defense, each had eight qualifiers to harness them more fully. Outside these qualifiers the federal government had no power to tax or spend.

General welfare then meant everyone equally (general), as opposed to “specific welfare” or “privileged welfare” as it is today, targeting those to forfeit and those to receive monies. The Constitution did not deny states, counties, or cities from having such programs, only the federal government. But politicians soon learned that the more they promised to the people, from the money of others, the easier it was to get elected and stay elected.

The problem with the federal government going off the list and funding things clearly not on it was that each time they did so the stronger the inclination to do so again. One minor departure begets another until one notices that what the federal government does has little or no relationship to the list. I ask my students what would happen if they took to kindergarten a lollypop and gave it to one child? What would the others say? Where is mine? Try taking away long provided benefits from a privileged group, as for example food stamps, and see how popular you are with that voting group in the next election.

So why does the government now need a fifth of everything you make and it is still not enough? Answer, because we went off the listed powers of the Constitution and every departure required more taxpayer funding. The solution to less tax is less government. A side benefit is more freedom. The productive classes would not be hurt. Seldom do they qualify for the federally subsidized programs anyway.

The fifth taken from the productive classes would be spent by them creating a haven of jobs for those who wished to work. The cycle of dependency would be drastically reduced. The federal government would no longer be an enabler to those not working. States would decide for themselves what assistance programs they could afford with some states offering more and others less as the Tenth Amendment mandates.

So, how did we cover the expenses of the federal government—even wars—our first 124 years? Products coming into the country were assessed a fee to market in the U.S. called a tariff. We got product producers in other countries to cover our national expenses and thus we were able to spend on ourselves every cent of what the federal government now takes, which inadvertently stimulated the economy. No one should be able to argue that our exceeding $22 trillion national debt is fair, has really worked for any of us, and is a better plan.

]]>A History of Civil Asset Forfeiture in Americahttp://tenthamendmentcenter.com/2019/04/12/a-history-of-civil-asset-forfeiture-in-america/
Fri, 12 Apr 2019 15:14:22 +0000http://tenthamendmentcenter.com/?p=28373Its use can be traced all the way back to medieval times and the American founding.]]>

by Brittany Hunter

Civil asset forfeiture has become a widely-recognized term, largely because of the long train of abuses that has been brought to the public’s attention over the last several years. Though few actually know from whence this practice originated, many are aware that the uptick in its use coincided with the rise of the government’s War on Drugs. However, the use of civil asset forfeiture began long before the drug war. In fact, its use can be traced all the way back to medieval times and the American founding.

If It Pleases the Crown…

For anyone unfamiliar with the term, civil asset forfeiture is a practice that allows law enforcement to seize money and property from someone suspected of wrongdoing, but who has not yet been charged with a crime. Sadly, many are never charged with a crime and even still find it difficult, if not impossible, to get their seized property back.

At the heart of this practice rests the belief that a person’s property can be charged with a crime, even if the person themselves have not been formally charged or convicted. And the precedent for this was set in medieval England. During this time, if a person was killed by an object or weapon, that item was essentially charged with murder and forfeited to the British Crown. Initially, the item was sold and the money received was given to charitable organizations. Eventually, though, the monarchy began keeping the money for itself. And thus, the very dangerous precedent of civil asset forfeiture was set, and it would later greatly impact the American founding.

Civil asset forfeiture was one of many policies that so angered the American colonists that they eventually fought a war for their independence.

Long before the United States was anything more than a ragtag group of colonies, the British Crown was using this tool to take money and property from its American subjects in order to fund its operations. This was one of many policies that so angered the colonists, they eventually fought a war for their independence over their grievances.

The Navigation Act of 1600, part of the broader Navigation Acts, mandated that any ship bringing cargo into the “New World” had to first go through British checkpoints for inspection. Additionally, any cargo ship leaving the American colonies with goods was also required to be checked before continuing on to its destination. The purpose of these inspections, of course, was to ensure that the Crown got its cut of the loot.

If, for example, someone attempted to skirt the rules by shipping cargo to another country without first stopping through Britain, they were deemed “smugglers” and “pirates” trying to avoid taxation and left themselves open to having their cargo—and even the horse and buggy used to load the goods onto the docks—confiscated. As subjects of the crown, the British authorities had expected the colonists to help enforce the Navigation Acts from afar. However, the colonists were not so eager to enforce the abusive policies of a distant government.

It wasn’t long before the newly formed American government got greedy and realized that they, too, could use this practice to profit off of their own people.

Once those accused made their case in colonial courts, it became very difficult to find a jury willing to convict. But by charging the property, and not the “pirates” with a crime, the Brits had found a loophole.

Recognizing that enforcing these policies through port inspections was going to be more difficult than initially expected, Britain began incentivizing captains and crews of the Royal Navy, and other agents of the state, to do their dirty work for them. In exchange for their services, those willing to enforce the rules were allowed to keep the seized ships as prizes, which only made the practice more appealing and, thus, more widespread. Sound familiar?

Anyone well versed in American history knows that the Navigation Acts were one of the grievances that finally led the colonists to revolt against the Crown with the signing of the Declaration of Independence in 1776. And though this practice was once scorned and despised by the revolutionaries, it wasn’t long before the newly formed American government got greedy and realized that they, too, could use this practice to profit off of their own people.

America Takes a Page Out of the British Playbook

One would think that after fighting a war over such egregious acts, like the civil forfeiture practiced under the Navigation Acts, the new American government would not turn around and make the same mistakes as their former rulers. Unfortunately, that is exactly what happened.

During wartime, specifically, the War of 1812, the Civil War, and the Spanish American War, 80-90 percent of the revenue brought in by the US government was through customs duties on cargo ships. And, just like the “pirates” and “smugglers” of the revolutionary era, many of these vessels tried to skirt by and avoid paying these taxes. War obviously comes with a hefty price tag, which is what ultimately caused the US government to resort to using the same practice they had once fought a revolution to stop.

In order to ensure that these customs duties were being collected, the government dispatched privateers whose sole purpose was to find smugglers who had not paid their customs duties and confiscate their property as payment. In return, they were allowed to keep a portion of the property they seized.

Prohibition ushered in an era of glitz and glamour for the world of organized crime.

During the Spanish American War, the small US Navy seized over 250 foreign ships while the contracted privateers seized over 1,200. This continued, to some extent, until the last privateer was hired at the beginning of World War I. Afterwards, it seemed as though the practice was finally nearing its end. But a new wave of civil asset forfeiture was only just beginning, and it would be sparked by the institution of the Eighteenth Amendment.

Prohibition ushered in an era of glitz and glamour for the world of organized crime. And with all this money pouring in under the radar, the government was clearly losing control of the situation.

Just like the British Crown discovered centuries prior, when brought before a jury of their peers, many were unwilling to actually convict bootleggers of wrongdoing. Since many “upstanding” American citizens were also guilty of violating prohibition era restrictions, there was a great deal of empathy for the accused. And without a proper conviction, law enforcement agents had to get creative. Enter the rebirth of civil asset forfeiture.

In order to fight back against the well-funded bootleggers, and profit from their own poorly-crafted policies, law enforcement began seizing the mobsters’ big guns and fancy cars before they ever saw their day in court. It was believed that by having the same weapons and vehicles as the mobsters, the playing field was leveled, but ultimately, law enforcement was never able to stop, or even significantly curb, the bootleggers.

Even after the prohibition, it was more convenient for bootleggers to continue underground, rather than be subject to the government’s taxes.

Even after Prohibition ended, the use of asset forfeiture did not. Since the illegal liquor apparatuses were still intact, it was more convenient for bootleggers to continue their trade underground, rather than have a legitimate business and be subject to the government’s taxes. As a result, US law enforcement continued the practice of civil forfeiture in order to make up for revenue lost on these underground operations.

Years later, law enforcement continued to use this practice to strike a blow to the world of organized crime. Since these powerful mob bosses wielded a lot of power within their unofficial “jurisdictions,” they became increasingly hard to stop. Even if the government did manage to convict someone with a lesser crime, like tax evasion, it was only a matter of time before they were released and back to business as usual.

Feeling powerless, and probably a little bitter about their inability to stop the rise of organized crime, police officers once again ramped up the civil asset forfeiture machine.

The War on Drugs

As the drug war started gaining steam, the Comprehensive Drug Abuse Prevention and Control Act was passed in 1970 and began paving the way for the broader use of civil forfeiture. Under this bill, drugs and any related equipment could be seized by the government. In 1978, when Congress passed the Psychotropic Substances Act, this was expanded to include money and securities thought to be used in drug-related crimes.

The most egregious part was that it set up the “equitable sharing program,” further incentivizing widespread use of the practice.

The true groundwork for modern civil asset forfeiture was laid in 1984 when the Comprehensive Crime Control Act was passed and law enforcement received the authority to confiscate any property related to drug crimes. It also allowed law enforcement to keep what they seized, reminiscent of the British Crown’s policies during colonial times.

Perhaps the most egregious part of this bill was that it set up the “equitable sharing program,” which allowed state law enforcement to share up to 80 percent of the profits confiscated with the federal government, further incentivizing the widespread use of the practice. And the rest, unfortunately, is history, though a recent Supreme Court ruling has brought some hope that this practice may soon be coming to an end.

Follow the Money

It is often said that if you want to find out what a person’s motives are, you should follow the money. This wisdom can be directly applied to this situation. Whether we are looking at the British Monarchy or the American government, civil asset forfeiture has been used to fund the state’s existence. But it appears that after several centuries of abuse, Americans have finally had enough of this practice.

In addition to the many reform victories that have occurred at the state level, the recent Supreme Court ruling in Timbs v. Indiana—a case that tested the constitutionality of civil asset forfeiture—dealt a huge blow to this legal tool so beloved and used by many in law enforcement. In the ruling, delivered by Ruth Bader Ginsburg, the highest court in the land unanimously agreed that the Eighth Amendment’s “excessive fines” clause applied to the states.

This on its own, of course, does not spell out the end for asset forfeiture, but it does signal a changing of the times. And with enough pressure at the state level, civil asset forfeiture may be entering its final days.

Brittany is a senior writer for the Foundation for Economic Education. Additionally, she is a co-host of Beltway Banthas, a podcast that combines Star Wars and politics. Brittany believes that the most effective way to promote individual liberty and free-market economics is by telling timely stories that highlight timeless principles.